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REPORTS 


OF 


CASES  IN  EaUITY, 


AKGUED  AND  DEl'EKMINED  IN 


THE  SUPREME  COUET 


OF 


NOETH  CAROLIIA, 

FROM  DECEMBER  TERM,  1860,  TO  JUNE  TERM, 
1863,  BOTH  INCLUSIVE. 

VOL.  VI. 


BY  HAMILTON  C.  JONES, 

R£}POIiT£R. 

SALISBURY,  N.  C. : 

PKINTIiD  BY  J.  J.  BKI'I\'1:R, 

1863. 


Cov{: 


JUDOES  OF  THE  SUPREME  COURT, 

During  the  period  comprised  in  this    Volume^ 

nON.  K.  M.  PEAKSON,  Chief  Justice, 
"      WILLIAM  H.  BATTLE, 
"     MATTHIAS  E.  MANLY. 


JUDGES  OF  THE  SUPERIOR  COURTS. 

HON.  JOHN  M.  DICK, 

"  JOHN  L.  BAILEY, 

«  E.  M.  SAUNDERS, 

«  ROBERT  R.  HEATH, 

"  J.  G.  SHEPHERD, 

«  JAMES  W.  OSBORNE, 

"  GEORGE  HOWARD,  Jk., 

"  ROBERT  S,  FRENCH, 

"  THOMAS  RUFFIN,  Jr., 

♦'  WILLLA.M  M.  SlIIPP, 

"  ROBERT  B.  GILLIAM. 


TO  THE  NAMES  OF  CASES  IN  THIS  VOLUME. 


Adams  v.  Jones, 
Allen,  Att.  General  v. 
Allen  V.  Pearce, 
Allen,  Smitherman  v. 
Alston  V.  Lea, 
Attorney  Gen.  v.  Allen, 
Att.  General  v.  Osborn, 
Att.  General  v.  Pierce, 

Ballantyne  v.  Turner, 
Bell,  Clark  v. 
Bennett  v.  Merritt, 
Bevis  V.  Landis, 
Biddle  v.  Carraway, 
Bitting,  Lynch  v. 
Blacknall  v.  Parish, 
Blackwell,  Hughes  v. 
Bowers  v.  Strudwick, 
Boylan,  Mordecai  v. 
Brown  v.  Haynes, 
Bradley,  McNeill  v. 
Bramble,  Sealy  v. 
Butcher,  White  v. 

Caldwell,  Douglas  v. 
Camp  V.  Mills, 
Carman  v.  Page, 
Carraway,  Biddle  v. 
Gates,  "Whitfield  v." 
Chambers  v.  Kerns, 
Chambers  v.  Reid, 
Chambers  v.  Payne, 
Cherry,  Eason  v. 
Chesson,  Johnston  v. 
Clark  V.  Lawrence, 


221 

Clark  V.  Bell, 

272 

IM 

Clay,  Long  v. 

350 

309 

Clements  v.  Mitchell, 

171 

17 

Conyers,  Joyner  v. 

78 

27 

Cook  V,  Ellington, 

371 

144 

Cook,  Martiu  v. 

199 

298 

240 

Daniels,  Myers  v. 

1 

Deans,  Thompson  v. 

22 

224 

Dickey,  Falls  v. 

357 

272 

Dillin  V.  Sessoms, 

256 

263 

Douglas  V.  Caldwell, 

20 

312 

Dulin,  Sain  v. 

195 

95 

238 

Eason  v.  Cherry, 

261 

70 

Eborn  v.  Waldo, 

111 

73 

Ellington,  Cook  v. 

371 

288 

Elliott,  Henry  v. 

176 

365 

Elliott  V.  Pool, 

42 

50 

41 

Fairly,  McLaurin  v. 

375 

295 

Falcon,  McWilliams  v. 

235 

231 

Falls  V.  Dickey, 

357 

Floyd  V.  Gilliam, 

183 

20 

Fleming  v.  Murph, 

59 

274 

Foy,  Whitley  v. 

34 

37 

Frazier,  Hunt  v. 

90 

-     95 

Frizzle  v.  Patrick, 

354 

136 

Futrill  V.  Futrill, 

337 

280 

304 

Gerock,  Jones  v. 

190 

276 

Gillis  V.  Harriss, 

267 

261 

Gilliam,  Floyd  v. 

183 

146 

Godwin,  Richardson  v. 

229 

83 

Gray,  Worth  v. 

4 

INDE.T. 


Gray,  Worth  v. 

380 

Green  v.  Harrison, 

253 

Griffin,  Hackney  v. 

381 

Hackney  v.  Griffin, 

381 

Hadley  v.  Rountree, 

107 

Harding  v.  Yarbrongh, 

215 

Harrison,  Green  v. 

253 

Harris,  Gillis  v. 

267 

Havens  v.  Hoyt, 

115 

Haynes,  Brown  v. 

50 

Henderson,  Qnickel  v. 

286 

Henry  r.  Elliott, 

175 

Herndon  v.  Pratt, 

327 

Hill  V.  Williams, 

242 

Hooper,  White  v. 

152 

Hofl'man,  Rhyne  v. 

335 

Hoyt,  Havens  v. 

115 

Hughes  V,  Blackwell, 

73 

Hunt  V.  Frazier, 

90 

Jackson  v.  Rheni, 

141 

Johnston  v.  Chesson, 

146 

Johnson  v.  Malcom, 

120 

Johnson  v,  Peterson, 

12 

Jones,  Adams  v. 

221 

Jones  V.  Gerock, 

190 

Jones  V.  McKenzie, 

203 

Joyner  v.  Conyers, 

78 

Joyner  v.  Joyner, 

322 

Knight  V.  Knight,  134 

Kerns,  Chambers  v.  280 

Landis,  Bevis  v.  312 

Latham  v.  Moore,  167 

Lawrence,  Clark  v.  83 

Lea,  Alston  v.  27 

Lee,  Rouse  v.  352 

Lloyd  V.  Whitley,  316 

Long  V.  Clay,  350 

Luterloh,  Partin  v.  341 

Lynch  v.  Bitting,  238 

McLaurin  v.  Fairly,  375 

McKay  v.  McNeill,  258 

McKay,  Rountree  v.  87 

McKenjie,  Jones  v.  203 


McLean,  Mims  r.  200 

McLean  v.  McPhaul,  15 

McNeill  v.  Bradley,  41 

McNeill,  McKay  v.  258 

Mc Williams  v.  Falcon,  235 

McPhaul,  McLean  v.  15 

Malcom,  Johnson  v.  120 

Mallett,  Malloy  v.  845 

Malloy  V.  Mallett,  345 

Martin  v.  Cook,  199 

Martin,  Smith  v.  179 

Mason  v.  Sadler,  148 

Merritt,  Bennett  v.  263 

Mills,  Camp  v.  274 

Mims  V.  McLean,  200 

Mitchell  V.  Ward,  66 

Mithell,  Clements  v.  171 

Moore,  Latham  v.  167 

Moore  v.  Moore,  132 

Mordecai  v.  Boylan,  365 

[Morehead,  Smith  v.  360 

Murph,  Fleming  v.  69 

Myers  v.  Daniels,  1 

Nooe  v.  Vannoy,  185 

Norfleet  v.  Slade,  217 

Osborn,  Att.  General  v.  298 

Page,  Carman  v.  37 

Partin  v,  Luterloh,  341 

Parish,  Blacknall  v.  70 

Patrick,  Frizzle  v.  354 

Payne,  Chambers  v.  276 

Pearce,  Allen  v,  309 

Peterson,  Johnson  v.  12 

Pierce,  Att.  General  v.  240 

Pool,  Elliott  V.  42 

Pratt,  Herndon  v,  327 

Quickel  v.  Henderson,  286 

Ray  V.  Scott,  283 

Reid,  Chambers  v.  304 

Rhem,  Jackson  v.  141 

Riggs  V.  Swann,  118 

Richardson  v.  Godwin,  229 


¥1 


NIDEX. 


Robinson,  Sanderlin  v.  155 

E,ountree,  Hadley  v.  107 

Rountree  v.  McKay,  87 

EiOnse  v.  Lee,  352 

Rhyne  v,  Hoffman,  335 

Sain  V.  Dulin,  195 

Sadler,  Mason  v.  148 

Sanderlin  v.  Robinson,  155 

Scales  V.  Scales,  163 

Scott,  Ray  v.  283 

Sealey  v.  Brumble,  295 

Sessoms,  Dillin  v.  256 

Slade,  ITorfleet  v.  217 

Sims  V.  Smith,  347 

Smith  V.  Martin,  179 

Smith  V.  Morehead,  360 

Smith,  Weisman  v.  124 

Smith,  Sims  v.  347 

Sitherman  v.  Allen,  17 

Swann,  Riggs  v.  118 

gtrudwick.  Bowers  v.  288 

Tatham  v.  Wilson,  250 

'yhompBon  v.  Deans,  22 


Tillman  v.  Tillman,  206 

Turner,  Ballantyne  v.  224 

y annoy,  Nooe  v.  185 

Waldo,  Eborn  v.  HI 

Ward,  Mitchell  v.  SQ 

Weisman  v.  Smith,  124 

White  V.  Butcher,  231 

White  V.  Hooper,  152 

Whitley  v.  Foj,  34 

Whitley,  Lloyd  v.  316 

Whitfield  V.  Gates,  136 

Williamson  v.  Williams,  62 

Williams,  Williamson  v.  62 

Williams,  Hill  v.  242 

Wilson,  Tatham  v.  250 

Worth  V.  Gray,  4 

Worth  V.  Gray,  380 

Yates,  In  the  matter  of,  212 

"                  "  306 

Yarbrough,  Harding  v.  215 

Yarbrough  v.  Yarbrough,  209 


CASES  IN  EQUITY, 

ARGUED  AND  DETERMINED 

IN   THE 

SUPREME  COURT  OF  NORTH  CAROLINA, 
AT  RALEIGH. 


DECEMBER  TEEM,  1860. 


A.  E.  MYERS  V.  WILLIAM  DANIELS* 

Where  a  cause  was  referred  to  arbitrators,  no  pleas  having  been  entered,  it 
was  held  that  the  reference  was  nothing  more  than  a  parol  reference,  and 
that  the  presiding  Judge  had  no  power  to  have  it  stricken  out. 

Where  the  defendant,  in  his  answer,  admitted  that  a  cause  was  referred,  (no 
pleas  having  been  entered,)  and  that  the  reference  was  stricken  out  with- 
out notice  to  the  other  party,  and  the  cause  was  submitted  to  a  jury,  and  a 
judgment  obtained  against  him  without  his  knowledge,  the  Court  refused 
to  dissolve  an  injunction  granted  to  restrain  the  collection  of  the  same. 

Appeal  from  an  interlocutory  order,  made  at  Spring  Term, 
1860,  of  Wilkes  Court  of  Equity.     Osbokne,  J.,  presiding. 

*This  cause  was  decided  at  Morganton,  but  was  inadvertently  taken  away, 
*o  that  the  Keporter  could  not  get  it. 

1 


IN  THE  SUPREME  COURT. 


Myers  v.  Daniels. 


This  was  a  bill  filed  by  A.  E.  Myers,  to  vacate  and  set 
aside  a  judgment  rendered  at  Fall  Term,  1859,  of  Iredell  Su- 
perior Court,  and  to  enjoin  the  collection  of  the  same.  Plain- 
tiff alleges,  in  his  bill,  that  in  1856,  he  sold  to  the  defendant 
a  valuable  horse  ;  that  shortly  afterwards,  said  defendant  al- 
leged that  plaintiff  had  practiced  a  fraud  upon  liim  in  the 
trade,  and  brought  suit  against  him  to  Fall  Term,  1857,  of 
Iredell  Superior  Court ;  that  plaintiff  and  defendant  before 
return  term  of  said  writ,  agreed  to  refer  the  cause  to  Jacob 
Fraley,  Steptoe  Bennet,  Williamson  Campbell,  and  Davidson 
Sharpe,  with  leave  to  choose  an  umpire;  that  at  Fall  Term, 

1857,  of  said  Court,  one  of  defendant's  attorneys  entered  the 
reference  on  the  docket,  and  shortly  afterwards  the  referees 
met,  and  after  selecting  an  umpire,  decided  the  cause  in  fa- 
vor of  plaintiff,  Myers,  and  filed  their  award  in  the  office  of 
the  clerk  of  said  court,  in  which  they  used  the  following  lan- 
ffuaee :  "  We  find  all  issues  in  favor  of  the  defendant,"  the 
present  plaintiff'.  Plaintiff  alleges  further,  that  it  was  dis- 
tinctly agreed  between  them,  that  the  cause  was  "  taken  out 
of  court,"  and  the  decision  of  said  referees  was  to  be  final. 
Plaintiff' further  alleges,  that  M'hen  said  referees  decided  the 
cause  in  his  favor,  defendant,  Daniels,  expressed  himself  sat- 
isfied, and  he  distinctly  understood  that  the  suit  was  at  an 
end ;  that  he,  Myers,  shortly  afterwards  removed  to  Wilkes 
county,  where  he  still  resides.  Plaintiff  further,  states,  in  his 
bill,  that  at  the  Spring  Term,  1858,  of  said  Court,  defendant's 
counsel  moved  to  set  aside  the  award,  because  there  were  no 
"issues  to  be  found,"  no  pleas  having  been  entered  in  the 
cause,  and  the  award  was  stricken   out ;  that  at  Fall  Term, 

1858,  the  reference  was  stricken  out,  on  motion  of  the  coun- 
sel of  said  Daniels,  without  any  notice  being  given  to  plain- 
tiff, Myers  ;  that  at  Spring  Term,  1859,  a  judgment  by  de- 
fault and  enquiry  was  entered  against  him,  and  at  Fall  Term, 

1859,  a  jury  was  empannelled  and  a  verdict  rendered  against 
him,  in  favor  of  Daniels,  for  $296.00,  and  execution  was 
issued  to  collect  the  same.  Plaintiff  charges  that  defendant 
conducted  these  proceedings  fraudulently,  and  that  he  knew 


DECEMBER  TERM,  1860. 


Myers  v.  Daniels. 


notJiiiig  of  the  same  same,  until  the  sheriff  applied  to  him  for 
the  mone}-^  dne  on  said  execution. 

Defendant  admits  the  reference  as  set  forth  in  the  bill ;  ad- 
mits that  the  referees  met,  examined  the  witnesses,  aud  deci- 
ded the  cause  in  favor  of  Myers,  but  he  deni-es  that  he  consid- 
ered their  decision  final ;  he  admits  that  the  reference  was 
stricken  out  witliout  any  notice  being  given  to  plaintiff,  My- 
ers, and  that  the  award  was  set  aside  without  the  knowledge  of 
Myere,  and  that  Myers  never  employed  counsel  in-  the  cause. 
On  the  coming  in  of  the  answer,  the  defendant's  counsel  mov- 
ed to  dissolve  the  injunction. 

The  defendaut's  counsel  insisted  that  the  Court  of  Equity 
had  no  jui-isdiction  of  this  cause,  for  the  reason,  tliat  the  judg- 
ment, by  default,  was  an  othce  judgment,  and  if  improperly 
obtained,  was  subject  to  revision  at  a  subsequent  term  on  mo- 
tion ;  that  the  award  M-as  informal,  and  was  properly  set  aside 
by  the  presiding  Judge;  that  defendant,  Daniels,  was  not 
bound  to  give  the  plaintiff,  Myers,  notice  of  the  proceeding 
in  this  cause,  as  it  was  his  duty  to  employ  counsel. 

Plaintiff's  counsel  insisted,  that  although  the  judgment,  by 
default  and  enquiry,  was  an  office  judgment,  the  final  judg- 
ment rendered  b}^  the  Court,  on  the  finding  of  the  jury  duly 
-erapannelled,  under  the  instructions  of  the  Court,  was  a  regu- 
lar judgment,  and  could  not  be  set  aside  on  motion;  that  no 
award  could  be  a  rule  of  court,  unless  the  reference  was  made 
after  the  cause  was  put  at  issue  ;  that  our  courts  cannot  en- 
force the  pei-formance  of  an  award  by  execution,  except  in 
'those  cases  where,  at  common  law,  awards  were  enforced  by 
attachments  for  contempt;  that  at  common  law,  an  attach- 
ment was  only  allowed  where  the  cause  was  referred  in  the 
nisi  prius  courts,  (the  pleas  having  been  entered  in  the  courts 
of  Westminster).  Plaintiff's  counsel  insisted  that  the  Court 
had  no  control  of  the  reference;  and  that  the  decision  of  the 
referees  was  final ;  that  the  defendant's  answer  admitted  facts, 
showing  that  unfair  means  were  resorted  to,  to  obtain  the 
j  udgment  in  the  cause. 

The  Court  refused  to  dissolve  the  injunction,  but  ordered 


IN  THE  SUPKEME  COFKT. 


Worth  V.  Gray. 


it  to  be  continued  to  the  hearing  ;  from  which  the  defendant 
appealed. 

Barber,  for  the  plaintiff. 
Boyden,  for  the  defendant. 

Manly,  J.  This  is  an  appeal  from  an  interlocutory  order 
continuing  an  injunction  until  the  hearing. 

We  have  considered  the  bill  and  answer,  and  concur  with 
his  Honor,  the  Judge  below,  in  the  propriet}'-  of  the  interlo- 
cutory order  made  by  him.  The  equity  of  the  bill,  which  has 
not  been  met  by  the  answer,  rests  upon  the  authorities  of  the 
QdtBQoi  Simpson  y.  McBee,^  Dev.  521,  and  the  principles 
laid  down  in  Billings  on  Awards,  230-31.  Without  deciding 
at  this  stage  of  the  case,  upon  the  merits  of  this  equity,  we 
think  there  is  enough,  not  met  by  the  answer,  to  send  the 
case  to  a  final  hearing,  with  the  injunction,  in  the  mean  time, 
continued. 

This  opinion  will  be  certified  to  the  Court  of  Equity,  for 
Wilkes  county,  that  it  may  proceed  in  the  cause. 

Per  Curiam,  Judgment  afllrmed. 


JONATHAN  WORTH,  AdrrCr,  against  ALEXANDER  GRAY  and  others. 

The  orders  and  decrees  of  a  court  of  Equity,  are  not  necessarily  absolute,  but 
may  be  moulded  and  shaped  to  meet  the  exigence  of  each  particular  case. 

Where  a  bill  was  demurred  to,  which  seemed  to  be  deficient  in  equity,  yet, 
as  there  were  facts  and  circumstances  incident  to  the  matter  disclosed, 
which  would  have  an  important  bearing  on  the  case,  some  of  which  were 
not  set  out  at  all,  and  others  but  vaguely,  and  the  amount  involved  was 
large,  the  Court,  without  costs  and  without  prejudice  to  the  defendants  equi- 
ty, overruled  the  demurrer  in  order  Ihat  the  plaintiff's  bill  might  be  amend- 
ed. 


DECEMBER  TERM,  1860. 


Worth  V.  Gray. 


Where  a  husband  having  a  right  to  receive  satisfaction  for  or  release  the  equi- 
ty of  his  wife,  permitted  a  long  time  to  elapse  without  bringing  suit,  during 
which  time  his  adversary  was  in  the  open  use  of  the  property,  claiming  it 
as  his  own,  it  was  held  that  a  presumption  of  abandonment,  release  or 
satisfaction  arose  against  the  equity,  which  would  be  fatal,  unless  the  delay 
was  accounted  for. 

Whether  ignorance  of  the  claimant's  right  is  sufficient  to  repel  the  presump- 
tion arising  from  the  lapse  of  time;    Quere? 

Whether  where  a  bill  by  way  of  anticipation  sets  forth  facts  to  repel  the  pre- 
sumption of  satisfaction,  release  or  abandonment,  which  avers  that  in  fact 
there  was  none,  and  the  defendant  pleads  the  statute  of  presumptions,  it  is 
necessary  to  support  such  plea  by  an  answer  to  the  plaintiff's  allegations; — 
Quere  ? 

Cause  transmitted  from  the  Court  of  Equity  of  Randolph 
count3^ 

The  bill  alleges  that  on  the  IStli  of  August,  1809,  in  con- 
templation of  a  marriage,  then  about  to  be  solemnized  be- 
tween the  defendant,  Alexander  Gray,  and  Nancy  Parke, 
widow,  articles  of  agreement,  of  three  parrs,  were  made  and 
entered  into  between  the  said  Alexander-  Gray  and  the  said 
Nancy  Parke,  and  one  Solomon  K.  Goodman  therein  named, 
as  trustee,  the  material  portion  of  which  is  as  follows : 

"That  whereas,  a  marriage  is  shortly  intended  to  be  so- 
lemnised between  the  said  Alexander  Gray  and  Nancy  Parke, 
with  whom  the  said  Alexander  Gray  is  to  have  and  receive  all 
sucii  property,  both  real  and  personal,  as  the  said  Nancy  is  now 
possessed  of  or  may  hereafter  be  possesed  of  in  consequence  of 
any  lawsuit  which  now  is,  or  hereafter  may  be  brought  for 
the  recoveiy  of  any  moneys  or  property  to  which  slie  is 
entitled  :  it  is  therefore,  covenanted  and  agreed  between  the 
said  parties  to  these  presents,  in  manner  and  form  following: 
First,  that  tlie  said  Alexander  Gray,  for  himself,  his  heirs,  ex- 
ecutors or  administrators,  doth  covenant  and  agree  with  the 
said  Nancy  Parke  and  Solomon  K.  Goodman,  their  heirs  and 
assigns,  that  they,  the  said  Alexander  Gi-ay  and  Nancy  Parke, 
his  intended  wife,  in  case  the  intended  marriage  be  solemn- 
ised, by  some  good  and  sufficient  conveyance  in  law,  shall 
settle  and  assure  all  such  property,  whetJier  real  or  personal, 


m  THE  SUPEEME  COURT. 


Worth  V.  Gray. 


whereof  she,  the  said  Nancy  is  seized  as  aforesaid,  to  the  use 
and  behoof  of  her,  the  said  Nancy,  and  her  friend  and  agent^ 
Solomon  K.  Goodman,  for  her  nse  and  benefit  during  her  na- 
tural life,  and  the  said  Alexander  Gray,  doth,  by  these  pres- 
ents, covenant  and  agree,  that  Solomon  K.  Goodman,  the 
agent  or  trustee  aforesaid,  shall  liave  full  power  and  authori- 
ty, by  the  advice  and  counsel  of  the  said  Nancy,  to  prevent 
the  said  property  from  being  sold  or  wasted,  and  doth  further- 
covenant  and  agree  that  the  said  Nancy  Parke,  his  intended 
wife,  sliall  have  full  power  and  authority  over  the  said  prop- 
erty, and  may,  at  any  time,  give  or  convey  any  part  of  the 
same  to  her  relations,  and  sliall  have  full  power  by  these  pre- 
sents, by  will  or  otherwise^  to  dispose  of  the  whole  of  the 
same  to  her  friends  and  relations  at  her  death  :  Provided^ 
nevertheless,  that  if  the  said  Nancy  shall  have  children  by 
the  said  Alexander  Gray,  she  shall  not  dispose  of  the  said 
property  so  as  materially  to  injure  them  ;  and  in  ease  the  said 
Alexander  Gray  shall  first  die,  it  is  on  his  part,  by  these  pre- 
sents, covenanted  and  agreed  that  the  said  Nancy,  his  intend- 
ed M-ife,  shall  hold  by  herself  and  the  authority  of  lier  said 
agent,  all  such  real  or  pei'sowal  property  as  she  now  is  enti- 
tled to,  and  in  case  the  said  Alexander  Gray  sho'uld  depart 
intestate,  that  the  said  Nancy  shall,  in  addition  to  her  own 
estate,  have,  hold,  possess  awd  enjoy  a  distributive  share  of 
him,  the  said  Alexander  Gray." 

That  the  whole  of  these  articles  are  in  the  hand-writing  of 
Gen,  Gray,  except  the  signature  c;f  Mrs.  Giay  and  the  trustee, 
and  one  Henry  r>urro\v,  the  snbscribiw^'  M'itness ;  that  Goodniaii 
was  the  brother-in-law  of  Mrs.  Gray,  and  Burrow,  the  witness, 
herbrot]>er;  that  said  Goodman  retained  the  said  marriage 
articles  in  his  j)ossession  until  he  ren>oved  to  the  ttate  of  Ten- 
nessee about  thirty  years  ago,  when  he  committed  them  to 
the  safe  keeping  of  one  Kennedy,  who  after  holding  them  for 
many  years  transmitted  them  to  Stephen  Moore,  who  deliver- 
ed them  to  the  plaintiff,  who  caused  them  to  be  duly  proved 
and  registered  in  the  county  of  Randolph. 

That  the  said  intended  marriage  was  solemnised,  and  in  the 


DECEMBER  TERM,  1860. 


Worth  V.  Gray. 


year  1810,  a  child  was  born  of  the  marriage,  to  wit,  Mary, 
who,  subsequently,  at  about  the  age  of  twenty,  was  married 
to  the  said  Stephen  Moore,  of  Hillsborough  ;  that  in  1852  or 
3,  she,  with  her  husband,  removed  to  the  State  of  Arkansas, 
and  there  died,  and  at  May,  Term,  1860,  of  Randolph  county 
court,  the  plaintiff,  Worth,  took  out  letters  of  administration 
on  her  estate. 

That  General  Gray  never  made  any  deed  or  assurance  as 
stipulated  in  the  marriage  articles,  and  that  his  wife,  the  said 
Nancy,  died  in  1818  or  19,  without  making  any  will,  and 
without  ever  having  disposed  of  any  of  the  property  owned 
by  her  at  her  marriage ;  that  General  Gray  married  a  second 
wife  some  five  years  afterwards,  by  whom  he  had  several  chil' 
dren,  whose  names  are  set  out  in  the  bill,  and  who  are  made 
defendants.  The  bill  sets  out  the  nature  and  quality  of  the 
property  owned  by  the  said  Nancy,  and  which  he  was  posses- 
ed  of  by  virtue  of  his  marriage,  and  the  articles  aforesaid, 
consisting  of  land  and  a  large  number  of  valuable  slaves; 
that  Moore  and  his  wife  sold  to  Gray  the  reversion  in  the 
land  after  the  expiration  of  his  life-estate.  The  plain- 
tifi",  by  his  bill,  insists  that  the  effect  of  these  articles  was 
to  limit  the  use  and  benefit  of  the  property  to  the  said  Alex- 
ander Gray,  during  the  joint  lives  of  him  and  his  wife,  and 
after  the  death  of  the  latter,  then  to  their  daughter,  the  said 
Mary,  absolutely,  and  that  at  any  time  after  the  birth  of  the 
said  Mary,  she  (the  mother)  might  have  insisted  on  convey- 
ances to  that  effect,  saving  the  power  of  a  disposition  to  a 
moderate  amount  in  favor  of  her  friends  and  relations  during 
her,  (the  mother's)  life,  and  that  the  plaintiff,  as  the  adminis- 
trator of  the  said  Mary,  is  entitled  to  an  account  of  all  the 
personal  estate  upon  that  basis. 

The  bill  sets  out  that  the  personal  propcrt3'^  aforesaid  was  ta- 
ken into  possession  by  the  said  Gray,  and  ever  since  has  been 
treated,  used  and  enjoyed  as  his  own  absolute  property,  or 
has  been  disposed  of  for  his  own  benefit ;  that  of  the  slaves, 
several  were  given  to  his  children,  who  are  made  defendants, 
and  are  called  on  to  account  for  the  same ;  that  within  a  year  or 


IN  THE  SUPEEME  COURT» 


Worth  w.  Gray. 


two  before  filing  the  bill  the  said  Stephen  Moore  called  his  at- 
tention to  the  said  marriage  articles ;  he  seemed  to  have  for- 
gotten them,  and  at  first  denied  their  existence,  but  when 
produced,  lie  admitted  their  genuineness,  and  stated  that  it 
had  always  been  his  intention  that  the  property  of  Mary's 
mother  should  be  given  to  her  (Mary)  and  her  children  ;  and 
at  one  time  it  was  agreed  between  the  said  Moore  and  the 
said  Gray,  that  the  matter  should  be  referred  to  the  arbitra- 
ment of  counsel,  or  to  compromise  the  same  themselves;  but 
on  the  next  day  Gray  expiessed  a  desire  that  the  matter  might 
be  settled  by  a  bill  in  equity,  and  refused  to  account  in  any  oth- 
er manner. 

The  prayer  of  the  bill  is  for  an  account  of  the  slaves  and 
their  hires  and  profits. 

The  defendants  demurred;  there  was  a  joinder  in  demur- 
rer ;  and  the  cause  being  set  down  for  argument,  was  sent  to 
this  Court. 

Graham^  for  the  plaintiff. 

Fowle,  Morehead  and  Kittrell,  for  the  defendants. 

Pearson,  C.  J.     The  demurrer  raises  two  questions: 

1.  The  construction  of  the  marriage  articles. 

2.  The  effect  of  the  lapse  of  time  during  which  the  de- 
fendant Gray  has  been  in  possession,  enjoying  the  property  as 
absolute  owner,  and  the  presumption  of  a  satisfaction  or  aban- 
donment of  the  equity. 

Our  opinion  inclines  with  the  defendants  on  both  of  these 
questions;  but,  as  the  amount  involved  is  very  large,  and  the 
Court  is  not,  by  the  bill,  as  now  framed,  put  in  possession  of 
{ill  the  facts  and  circumstances  which  are  relevant  and  may 
have  an  important  bearing  on  its  decision,  we  will  avail  our- 
selves of  the  fact,  that  the  orders  and  decrees  of  this  Court 
are  not  necessarily  ahsolute  like  a  judgment  in  a  court  of  law, 
but  may  be  "  moulded  and  shaped  to  meet  the  exigence  of 
each  particular  case,"  and  order  the  demurrer  to  be  overruled 
without  allowing  costs,  and  without  prejudice  to  the  equity  or 


DECEMBER  TEEM,  1860. 


«>• 


Worth  V.  Gray. 


defense  of  the  defendants  which  may  be  set  up  by  plea  or 
answer  as  they  shall  be  advised,  for  the  purpose  of  giving  the 
plaintiff  an  ^opportunity  of  amending  the  bill  by  making  fur- 
ther allegations,  and  the  defendants  an  opportunity  to  rely  on 
the  presumption  of  satisfaction,  release  or  abandonment  of 
the  equity  by  plea,  (if  so  advised)  and  of  afterwards  setting 
out  all  of  the  facts  and  circumstances  relevant  to  the  question 
by  averment  in  their  answer,  should  tho  plea  be  overruled. 

1.  The  plaintiff  alleges  that  by  the  proper  construction  of 
the  marriage  articles,  the  legal  effect  is  to  give  an  estate  to  the 
wife  for  life  in  all  of  the  estate  belonging  to  her  before  the 
marriage,  with  full  power  to  dispose  of  it  by  giving  it  to  her 
relations  or  friends,  unless  there  should  be  issue  of  the  marri- 
age;  in  which  event,  the  intention  was  to  vest  the  ulterior  in- 
terest after  the  life-estate,  in  such  child  or  children,  and  he  in- 
sists that  although  this  intention  of  making  a  limitation  over 
in  favor  of  any  child  or  children  that  might  be  born  of  the 
marriage  is  not  expressed  in  the  articles,  it  will  be  implied  by 
the  Court  from  the  nature  of  the  relation  which  the  parties 
had  in  contemplation,  which  furnishes  the  natural  and  ordina- 
ry presumption  that  the  intention  is  to  provide,  as  well  for  the 
issue  of  the  marriage  as  for  the  wife,  and  relies  on  the  fact  that 
this  is  an  executory,  as  distinguished  from  an  executed  trust, 
where  greater  latitude  of  construction  is  allowed,  in  order  to 
give  effect  to  the  apparent  intention  of  the  parties,  a*)d  the 
Court  is  not  bound  b3'  the  use  or  omission  of  technical  words. 

On  the  ]iart  of  the  defendants,  it  is  insisted  that  the  oidy 
purpose  of  the  parties,  in  making  the  marriage  articles,  was  to 
give  to  Mrs.  Gray  power  to  dispose  of  the  estate  which  she 
owned  before  the  marriage,  by  giving  it  to  her  relations  and 
friends,  with  a  restriction  upon  the  power,  in  case  she  should 
have  children,  and  that  no  limitation  was  intended  to  be  made 
and  none  in  fact  was  made,  so  as  to  vest  in  them  an  estate  af- 
ter her  death;  for,  if  she  died  first,  the  husband,  it  was  pre- 
sumed, would  be  able  to  provide  for  the  children,  and  if  he 
died  first,  they  would  be  amply  provided  for  out  of  his  estate, 
and  out  of  the  estate  which   was  secured  to  her.     In  aid  of 


10  IN  THE  SUPREME  COURT. 


Worth  V.  Gray. 


this  construction,  it  was  urged  that  the  subsequent  acts  of  the 
parties  were  in  conformity  thereto  ;  for,  after  the  birth  of  a 
child,  and  the  death  of  his  wife,  General  Gray  treated  the 
marriage  articles  as  having  no  further  force  or  effect,  and  used 
and  disposed  of  the  property  as  if  absolutely  his  own,  and 
Moore  and  wife  so  acted  in  respect  to  the  land,  by  selling  him 
the  reversion  after  his  life-estate  ;  whereas,  if  the  articles  had 
been  in  force,  according  to  the  construction  contended  for  by 
the  plaintiflP,  he  was  not  entitled  to  an  estate  for  life  as  tenant 
by  the  curtesy,  and  Mrs.  Moore  was  entitled  to  the  whole  es- 
tate, and  not  simply  to  a  reversion. 

It  is  manifest  that  the  condition  of  the  parties,  and  the  state 
of  things  at  the  date  of  the  marriage,  may  have  an  important 
bearing  upofi  this  question  of  construction,  and  the  Court 
should  be  put  in  possession  of  all  the  facts :  was  General  Gray 
an  improvident,  thriftless  or  dissipated  man? — a  man  of  no 
propert}',  and  "  a  fortune  hunter,"  who  was  not  likely  to  be 
able  to  take  care  of  his  children  ?  Or  was  he  a  prudent  busi- 
ness man,  with  property  of  his  own,  and  one  who  could  rea- 
sonably be  confided  in  to  take  care  of  his  children,  if  he 
should  have  any?  "What  was  the  age  of  Mrs.  Parke  at  the 
date  of  her  contemplated  second  marriage?  How  long  had 
she  been  married  to  her  first  husband  without  having  borne  a 
child  ?  Had  she  any  destitute  relatives  for  whom  she  suppos- 
ed he#self  under  an  obligation  to  provide? 

These  facts  have  an  important  bearing  as  tending  to  distin- 
guish the  case  from  that  of  two  young  people  just  starting  in 
life,  with  whom  the  first  and  uppermost  idea  on  their  mar- 
riage is  to  make  a  provision  for  children  ;  whereas,  in  this  case, 
judging  by  the  face  of  the  articles,  the  most  prominent  idea 
was  to  give  the  wife  power,  notwithstanding  her  marriage, 
to  provide  for  "  her  kin-folks." 

2.  As  Moore  had  power  to  receive  and  accept  satisfaction 
for,  or  release  his  M'ife's  equity,  a  presumption  arises  from  the 
lapse  of  time  during  which  the  defendant  Gray  had  possession 
and  used  the  property  as  his,  even  according  to  the  case  of 
Coiten  v.  Davis^  2  Jones  Eq.  430,  unless  the  defendants  are 


DECEMBER  TERM,  1860.  11 


Worth  V.  Gray. 


able  to  account  I'or  the  delay,  or  to  repel  the  presumption.  It 
was  said  on  the  argument  that  Moore,  the  husband  of  plain- 
tift''s  intestate  was  not  informed  of  tlie  existence  of  the  mar- 
riage articles,  and  of  the  estate  which  had  vested  in  her  by 
force  thereof  until  within  less  than  two  years  before  the  bill 
was  filed.  Tliis  fact  is  not  distinctly  alleged  in  the  bill,  and 
our  purpose  in  not  disposing  of  the  case  definitely  at  this  stage, 
is  to  give  the  plaintifi'  an  opportunity  to  amend  his  bill,  and 
aver  the  fact  distinctly,  if  it  is  so,  and  present  the  question 
M'hether  ignorance  of  the  right  will  prevent  the  presumption. 

It  was  also  said,  on  the  argument,  that  the  admissions  of 
General  Graj',  when  a  demand  was  made  and  his  attention 
was  called  to  the  existence  of  the  marriage  articles,  and  par- 
ticularly his  oifer  to  refer  the  matter  to  the  arbitration  of  mu- 
tual friends  is  sufficient  to  repel  the  presumption.  These  mat- 
ters are  not  set  out  in  the  bill  with  the  degree  of  certainty  ne- 
cessary to  give  to  the  demurrer  the  eflect  of  a  positive  admis- 
sion which  would  i-epel  the  presumption  ;  and  the  demurrer 
is  overruled  for  the  purpose  of  removing  all  difficulty  in  this 
respect.  The  j>laintiff  may  amend  his  bill  and  charge  these 
matters  with  certainty  by  way  of  anticipating  the  plea  of  the 
defendants,  (if  they  are  so  advised)  setting  out  the  fact  of  the 
long  enjoyment  and  possession  of  the  property,  and  relying 
on  the  presumption  of  a  release,  or  satisfactioii  or  abandon- 
ment, which  the  law  makes  therefrom. 

Whether  the  defendants  will  be  required  to  answer,  in  sup- 
port of  this  plea,  an  allegation  in  the  bill  charging  that  there 
has  been  no  satisfaction  and  no  release,  will  be  an  interesting 
question  in  regard  to  which  we  intiinate  no  opinion.  The 
statute,  and  the  rule  of  the  common  law,  obviously  give  to 
the  lapse  of  time  a  technical  effect  over  and  beyond  that  of  a 
mere  circumstance,  as  upon  an  enquiry  in  regard  to  an  open 
question  of  fact.  AVhether  it  is  consistent  with  tiie  policy  of 
this  rule  to  require  a  party  to  make  admissions  as  to  a  mat- 
ter of  fact  which  will  defeat  his  plea,  is  a  question  we  leave 
for  future  consideration. 

Per  Curiam,  Demurrer  overruled  without  costs,  and 

without  prejudice. 


12  IN  THE  SUPKEME  COURT. 


Johnson  v.  Peterson. 


JOSEPH  JOHNSON  against  JOSHUA  PETERSON. 

A  conveyance,  by  a  woman,  after  a  marriage  engagement,  and  upon  the  eve 
of  its  solemnization,  is  a  fraud  upon  the  rights  of  the  intended  husband  and 
will  not  be  upheld,  unless  it  appear  clearly  and  unequivocally,  that  the  hus- 
band had  full  knowledge  of  the  transaction  and  freely  assented  to  it. 

Where  a  woman,  being  under  an  engagement  to  marry,  made,  a  week  before 
the  marriage,  a  voluntary  secret  conveyance  of  all  her  property,  including 
slaves,  to  the  defendant,  a  man  of  slender  means,  who,  after  the  marriage, 
took  the  slaves  into  his  possession,  and  refused,  on  demand,  to  give  them 
up,  but  claimed  them  as  his  own,  under  such  conveyance,  it  was  held  that 
the  husband  was  entitled  to  writs  to  restrain  the  defendant  from  removing 
the  slaves  out  of  the  State,  although  no  threat  to  do  s©  was  made  to  ap- 
pear. 

This  was  an  appeal  from  an  interlocutory  order,  made  in 
the  Court  of  Equity  of  Sampson  county,  refusing  to  dissolve 
am  injunction,  and  continuing  it  over  to  the  hearing.  French, 
J.,  presiding. 

The  bill  sets  forth,  that  the  plaintiff  intermarried  with  Su- 
san Peterson  on  14th  of  March,  1860  ;  that  shortly  before  the 
said  marriage,  and  after  an  agreement  had  been  entered  into 
with  the  said  Susan,  that  they  should  marry,  and  only  a  week 
before  that  event,  she  secretly,  and  without  his  knowledge, 
and  in  fraud  of  his  marital  rights,  conveyed  to  the  defendant, 
Joshua  Poterson,  by  three  several  deeds,  her  interest  in  ten 
slaves,  (naming  them)  and  a  right  to  live  upon  and  enjoy  a 
tract  of  land  of  186  acres,  during  the  time  of  her,  the  said 
Susan's,  marriage  life,  and  providing  in  said  deeds,  that  on 
her  becoming  discovert,  her  right  to  the  said  property  should 
revive;  that  the  said  deeds  are  expressed  to  be,  each,  on  the 
consideration  of  five  dollars,  but  that  no  money  or  other  thing 
of  value  was  paid  for  the  said  property ;  that  the  said  Susan 
had,  under  the  will  of  a  former  husband,  a  life-estate  in 
the  said  negroes  and  land,  and  that  the  defendant  has  taken 
possession  of  the  said  slaves  and  land,  and  on  the  same  being 
demanded,  refuses  to  give  them  up,  and  has  threatened  to 
run  tJiem  out  of  the  State  ;  that  the  defendant  is  irresponsible 


'DECEMBER  TERM,  1860.  13 


Johnson  v.  Peterson. 


in  respect  of  financial  means,  having  no  property,  except  a 
remainder  in  two  of  these  slaves  after  the  death  of  the  said 
Susan.  The  prayer  of  the  bill  is  for  an  injunction  and  seques- 
tration to  prevent  defendant  from  running  the  slaves  out  of 
the  State.  These  writs  were  issued  in  vacation,  and  the  de- 
fendant answered  at  the  next  term.  lie  does  not  deny  the 
execution  of  the  deeds,  nor  the  time  nor  circumstances  under 
which  they  were  executed.  lie  denies,  however,  that  any 
fraud  was  intended,  and  says,  though  he  paid  no  money,  that 
the  said  Susan  had  promised  him,  before  the  engagement  of 
marriage,  to  make  him  such  conveyances,  and  that  she  owed 
him  for  one  year's  work  he  had  done  for  her,  and  that  he  in- 
tended to  give  her  a  credit  for  Avhat  she  owed  him.  He  de- 
nies that  he  ever  threatened  to  remove  the  said  slaves  from 
the  State,  or  that  he  intends  to  do  so,  but  admits  he  is  a  man 
of  slender  means,  beyond  his  claim  in  these  slaves,  and  in- 
sists on  the  validit}'  of  his  claim  to  the  property,  under  tiie 
deeds,  lie  denies  that  the  plaintiff  was  ignorant  of  the  exist- 
ence of  these  deeds,  for  that  one  of  the  family  had  put  him  on 
his  guard,  by  telling  him  in  the  presence  of  the  said  Susan, 
that  he  would  not  get  what  he  expected  to  get  by  his  inter- 
marriage with  her,  to  which  he  replied,  that  "it  was  not  the 
projterty  he  wanted,  but  the  woman."  On  the  coming  in  of 
the  answer,  the  defendant  moved  to  dissolve  the  injunction 
and  sequestration,  which  was  refused  by  his  Honor,  who  or- 
dered them  to  be  continued  to  the  hearing;  from  which  or- 
der, the  defendant  appealed. 

W.  A.  Wright,  for  the  plaintiff. 
Person,  for  the  detendant. 

Manly,  J.  The  interlocutory  order  appealed  from,  con- 
tinuing the  injunction  to  the  hearing,  is  justified  by  the  facts 
of  the  case,  api)arent  upon  the  bill  and  answer. 

The  equity  of  the  bill  seems  to  us  to  be  manifest.  The 
time,  manner,  and  circumstances  altogether,  when,  and  where- 
by the  woman  strippedherself  of  every  particle  of  her  property, 


14  m  THE  SUPREME  COUET. 

Johnson  a.  Peterson. 

was  a  fraud  upon  the  rights  of  her  intended  husband.  Such 
a  conveyance  after  a  marriage  engagement,  and  upon  the  eve 
of  its  solemnization,  is  fraudulent,  and  not  fit  to  be  upheld, 
unless  the  intended  husband  have  full  knowledge  of  and  free- 
ly assent  to  it.  Such  knowledge  and  assent  ought  to  be  clear 
and  unequivocal,  and  not  inferable  merely  from  casual  re- 
marks by  an  indifferent  person  in  the  hearing  of  the  husband, 
and  from  responses  of  his,  made  in  a  spirit  of  gallantry. 

When  the  riglit  to  the  relief  sought  is  clear,  the  Court  will 
incline  favorably  to  ancillary  writs  intended  to  make  sure 
that  relief.  Thus,  in  the  case  before  us,  where  the  bill  is  to 
declare  fraudulent  and  void  deeds  for  slaves,  and  to  compel  a 
reconveyance  and  redelivery  of  them,  the  Court  will,  upon 
any  grounds  that  are  not  light  and  frivolous,  put  the  defend- 
ant under  an  injunction  not  to  withdraw  the  property  from 
the  reach  of  its  process.  An  injunction  imposes  no  obliga- 
tion on  him  that  he  was  not  already  bound  in  conscience  to 
fulfil.     It  only  adds  a  legal  penalty  to  a  moral  obligation. 

Although  tlie  principal  allegation,  in  the  bill,  of  a  purpose 
to  remove  the  slaves  beyond  the  juristiction  of  our  courts,  is 
denied  by  the  defendant,  yet,  he  admits  he  sets  up  claim  to 
them  under  the  deeds  in  question,  and  does  not  deny  that 
he  is  a  man  of  little  or  no  means  beyond  the  slaves  in  contro- 
versy. This,  we  think,  is  sufficient,  when  added  to  the  clear 
equity  of  the  plaintiff's  bill,  and  the  consequent  unconscien- 
tiousness  of  the  defense,  to  cause  the  Court  to  leave  the  de- 
fendant under  the  injunction. 

It  should  be  certified  to  the  Court  below,  that  there  is  no 
error  in  the  interlocutory  order  appealed  from,  and  that  they 
do,  therefore,  proceed. 

Per  Curiam.  Judgment  affirmed. 


DECEMBER  TERM,  1860.  ^  $^ 


McLean  v.  McPhaul. 


HECTOR  McLEAN  against  NEILL  McPHAUL  AND  OTHERS. 

A  distributive  share  in  the  hands  of  an  administrator,  due  the  wife  of  a  non- 
resident debtor,  cannot  be  subjected  to  the  payment  of  the  husband's  debts 
in  this  State,  by  means  of  an  attachment,  in  equity,  under  the  statute,  Rev. 
Code,  chap.  7,  sec.  20. 

CArsE  removed  from  the  Court  of  Equity  of  Robeson 
county. 

The  bill  sets  out,  that  Catliarine  McLean  died  intestate,  in 
the  county  of  Robeson,  sometime  in  the  year  1858,  seized  and 
possessed  of  a  considerable  estate,  and  left  among  other  next 
of  kin,  a  sister,  Margaret,  wlio  had  intermarried  with  the  de- 
fendant, Neill  ]V[cPhaul.  As  one  of  the  next  of  kin  of  her 
sister  Catharine,  Margaret  McPhaul  was  entitled  to  a  distri- 
butive share  of  her  estate.  Letters  of  administration  upon 
the  estate  of  Catharine  McLean  were  granted  to  one  Morri- 
son, who  is  made  a  party  defendant  in  this  suit.  The  bill  fur- 
ther states,  that  Neill  McPhaul,  the  defendant,  is  a  non-resi- 
dent of  the  State,  and  is  indebted  to  tlie  plaintitf  in  the  sum 
of  one  hundred  and  forty-five  dollars,  due  upon  a  former  judg- 
ment, and  it  prays  that  the  distributive  share  of  the  estate  of 
Catharine  McLean,  to  which  defendant  is  entitled  in  right  of 
his  wife,  and  which  is  still  in  the  hands  of  the  administrator, 
Morrison,  may  be  decreed  in  satisfaction  of  this  debt. 

Defendant  demurred  for  the  want  of  equity,  and  the  cause 
being  set  down  for  argument  upon  the  bill  and  demurrer,  was 
sent  to  this  Court  by  consent. 

M.  B.  Smith,  for  the  plaintiff. 
LeitcJi,  for  the  defendants. 

Pearson,  C.  J.  The  question  is,  can  the  creditors  of  a 
non-resident  reach  a  distributive  share  in  the  hands  of  an 
administrator,  which  is  due  to  the  wife  of  the  debtor,  by 
means  of  an  "  attachment  in  equity"  under  the  statute,  Rev. 
Code,  chap.  7,  sec.  20  ? 


l^  m  THE  SUPREME  COURT.     ' 

McLean  v.  McPhaul. 

"We  are  of  opinion  that  the  case  is  not  embraced  by  the 
statute,  for  this  very  satisfactory  reason :  the  distributive 
share,  while  in  the  hands  of  the  administrator,  does  not  be- 
lon.o;  to  the  husband.  It  is  true,  by  the  jus  mariti,  he  may 
reduce  it  into  possession  during  the  coverture,  and  if  he  does 
80,  it  belongs  to  him,  or  he  may  assign  it,  and  if  the  assignee 
reduces  it  into  possession  during  the  coverture,  it  Avill  belong 
to  hi'm,  but  until  it  is  reduced  into  possession,  it  belongs  to 
the  wife,  and  if  the  husband  dies  before  that  is  done,  either 
by  himself  or  his  assignee,  the  interest  of  the  wife  is  absolute. 
This  is  settled  ;  Arrington  v.  Y^arharo,  1  Jones'  Eq.  73,  where 
the  subject  is  fully  entered  into  and  disposed  of. 

The  fact,  that  a  legacy  in  the  hands  of  an  executor,  or  a 
distributive  share  in  the  hands  of  an  administrator,  which  is 
due  to  the  wife,  belongs  to  her  and  not  to  the  husband,  is  the 
ground  of  the  well-established  doctrine,  i.  e.,  equity  will  not 
interfere,  at  the  instance  of  a  creditor  of  the  husband,  in  or- 
der to  subject  the  fund  to  the  satisfaction  of  the  debt,  either 
by  compelling  the  husband  to  reduce  it  into  possession  or  as- 
sign it  for  the  benefit  of  his  creditors,  and  thus  enable  them 
to  reduce  it  into  possession.  If  the  husband  chooses  to  do  so, 
the  courts  of  equity,  in  this  State,  will  not  interfere  to  prevent 
him  and  require  a  settlement  on  the  wife.  But  neither  in 
North  Carolina,  nor  in  England,  nor  any  where  else,  that  we 
are  informed  of,  do  courts  of  equity  interfere  actively-  to  the 
prejudice  of  the  wife,  and  subject  her  interest  without  the 
consent  and  co-operation  of  the  husband,  to  the  payment  of 
his  debts,  because  it  would  be  doing  injustice  to  the  wife  to 
deprive  her  of  the  chance  to  have  the  absolute  ownership  if 
she  survives,  and  of  the  right  to  have  the  interest  devolve  up- 
on her  personal  representative  if  she  dies  first ;  whereby  it 
would  be  first  applicable  to  the  satisfaction  of  he?'  own  cred- 
itors, before  it  passes  to  the  husband  and  becomes  liable  to 
his  creditors.  In  Allen  v.  Allen,  6  Ire.  Eq.  293,  and  Barns 
V.  Pearso7i,  Ibid.  482,  the  general  doctrine  is  assumed,  and 
those  cases  are  made  exceptions,  on  the  ground,  that  where 
the  husband  makes  an  assignment  and  an  interest  vests  in  the 


DECEMBER  TERM,  1860.  It 


Smitherman  v.  Allen. 


assignee,  the  courts  are  then  called  on  to  aid  the  assio-nee  iu 
like  manner  as  they  would  aid  the  husband,  to  reduce  the  in- 
terest into  possession,  whereby  the  wife  ceases  to  be  the  own- 
er of  the  fund. 

On  the  same  general  principle,  it  is  held,  at  Law,  that  a 
legacy  of  the  wife  cannot  be  taken,  under  an  attachment,  by 
the  creditor  of  the  husband ;  Arringtoii  v.  Screios,  9  Ire.  42. 

In  short,  there  is  neither  authority  nor  principle  to  support 
the  position  on  \vliich  the  bill  is  based. 

Per  Curiam,  Demurrer  sustained. 


SMITHERMAN  &  SPENCER  against  HIRAM  ALLEN  AND  OTHERS. 

Where  a  debtor  conveyed  all  his  property  with  an  intent  to  defraud  his  cred- 
itors, and  then  left  the  State,  it  was  held  that  a  creditor  could  not  main- 
tain a  suit,  iu  equity,  to  have  his  debt  satisfied  out  of  the  property,  under 
the  statute,  Rev.  Code,  chap.  7,  sec.  20,  his  remedy  being  at  Law. 

Cause  removed  from  the  Court  of  Equity  of  Montgomery 
county. 

Hiram  Allen,  one  of  the  defendants  in  this  case,  was  in- 
debted to  the  plaintiffs  in  the  sum  of  $175.00,  due  by  note 
and  account  ;  and  the  said  Allen,  in  the  month  of  September, 
1859,  was  seized  of  a  tract  of  land,  in  the  county  of  Mont- 
gomery, and  was  also  possessed  of  a  valuable  chattel  proper- 
ty. Some  time  during  that  month,  the  defendant,  Hiram, 
conveyed  all  his  property  to  his  brother,  David  Allen,  and 
his  brother-in-law,  Martin  Ilunsucker,  who  are  the  other  de- 
fendants in  this  suit,  and  then  left  the  State. 
^  The  bill  charges  that  this  conveyance  was  intended  to  de- 
fraud creditors,  and  that  there  was  a  combination  among  the 
defendants  for  that  purpose. 

2 


18  m  THE  SUPREME  COURT. 

Smithermau  v.  Allen. 

The  prayer  is  for  a  discovery  of  the  matters  relating  to  this 
transaction,  and  that  the  payment  of  plaintiffs'  debt  may  be 
decreed,  according  to  the  statute.  Revised  Code,  chapter  7, 
section  20,  against  the  defendants,  and  for  general  relief. — 
The  defendants  demurred  to  the  bill,  for  the  reason,  that  the 
plaintiffs  had  a  remedy  by  an  attachment,  at  law,  and  also 
for  that  the  plaintiffs  had  not  reduced  their  debt  to  a  judg- 
ment. The  cause  being  set  for  argument  upon  bill  and  demur- 
rer, was  transferred  to  this  Court. 

Mason  and  Jackson,  for  the  plaintiffs. 
IlcGorkle,  for  the  defendants. 

Peakson,  C.  J.  A  debtor  conveys  all  of  his  property  with 
an  intent  to  defraud  his  creditors,  and  then  leaves  the  State. 
The  question  made  by  the  pleading  is,  can  a  creditor  main- 
tain a  bill  to  have  his  debt  satisfied  by  what  may  be  called, 
"  an  attachment  in  equity,"  under  the  provisions  of  the  stat- 
ute, Rev.  Code,  chap.  7,  sec.  20  ?  We  are  of  opinion  that  the 
case  does  not  come  within  the  provisions  of  the  statute. 

It  is  said  the  grantee  holds  the  property  upon  a  secret  trust 
for  the  debtor,  and  the  statute  applies  to  any  estate  or  effects 
in  the  hands  of  a  "  trustee,"  holding  for  the  use  of  the  debtor. 
It  is  clear,  that  the  debtor,  himself,  could  not  enforce  such  a 
trust,  for  the  conveyance,  although  void  by  the  statute  of 
Elizabeth,  as  to  creditors,  is  good  between  the  parties,  and 
neither  a  court  of  law  nor  a  court  of  equity  will  interfere  at 
the  instance  of  the  debtor  ;  in  other  words,  the  confidence 
reposed  by  him  in  the  grantee  is  not  recognised  by  the  courts 
as  a  trust  fit  to  be  enforced,  and  as  the  proceeding,  under  the 
statute,  rests  on  the  footing  of  enforcing  a  trust,  it  follows 
that  a  trust,  like  that  under  consideration,  does  not  fall  with- 
in the  meaning. 

It  is  settled  that  such  a  trust  does  not  come  within  the  meaning 
of  the  act  of  1812,  and  cannot  be  sold  under  an  execution,  at 
law ;  Page  v.  Goodman,  8  Ire.  Eq.  16. 

So  it  is  settled,  such  a  trust  cannot  be  sold  on  the  petition 


DECEMBER  TEEM,  1860.  19 

Smitherman  v.  Allen. 

of  can  administrator,  under  the  act  of  1846;  Ithein  v.  Tull^ 
13  Ire.  57,  and  it  is  said  the  creditors  may  reach  the  proper- 
ty, not  on  the  ground  of  a  trust,  but  on  the  ground  of  frauds 
which  proves  that  the  Avord  "  trustee,"  used  in  the  statute, 
under  consideration,  does  not  embrace  a  case  of  this  kind. 

It  was  next  insisted,  that  the  case  is  that  of  an  absconding 
debtor,  having  "  an  estate  in  the  hands  of  a  third  person, 
wliich  cannot  be  attached  at  law,  or  levied  on  under  execu- 
tion." Wiiy  may  not  this  property  and  estate  be  attached 
at  law?  The  conveyance  is  void  as  to  creditors,  so  they  may 
treat  the  property  as  if  it  still  belonged  to  the  debtor,  and,  in 
fact,  it  is  his  property  for  the  satisfaction  of  debts. 

This  disposes  of  our  case.  The  case  of  Gentry  v.  Harper^ 
2  Jones'  Eq.  177,  referred  to,  on  the  argument,  is  distinguisha- 
ble from  this,  but  may  serve  to  illustrate  the  principle.  There 
the  interest  of  the  debtor  could  not  be  reached  at  law  by  a 
creditor,  who  had  obtained  «  judgment,  and  it  was  subjected 
in  equit}^  not  on  the  ground  of  a  trust,  but  on  the  broad 
ground,  "  that  it  was  against  conscience  for  debtors,  to  at- 
tempt, in  any  way,  to  withdraw  property  from  the  payment 
of  their  debts,  and  where  a  court  of  law  cannot  reach  it,  a 
court  of  equity  will." 

In  exercising  this  jurisdiction,  the  courts  of  equity  require 
that  the  question  of  debt,  or  no  debt,  being  a  legal  one,  should 
be  settled  by  a  judgment,  at  law.  To  meet  this,  the  statute, 
under  consideration,  was  passed.  It  may  be  that  a  fraud, 
like  that  in  Gent?'}/  v.  Harper,  is  not  provided  for  by  it.  But 
our  case  is  expressly  excluded,  on  the  ground,  that  the  fraud 
is  one,  which  does  not  stand  in  the  way  of  creditors,  and  they 
may  have  an  attachment  at  law,  and  do  not  need  the  inter- 
ference of  a  court  of  equity. 

Per  Curiam,        Demurrer  sustained  and  bill  dismissed. 


20  m  THE  SUPEEME  COUKT. 


Douglas  V.  Caldwell. 


GEORGE  B.  DOUGLAS,   Guardian,    v.   A.  H.  CALDWELL,  Guardian. 

Where  it  appeared  that  the  property,  in  this  State,  of  a  ward  residing  in  an- 
other State,  consisted  of  good  bonds,  at  interest,  in  the  hands  of  his  guar- 
dian here,  a  part  of  which  arose  from  the  sale  of  land,  and  the  ward  was  near- 
ly of  age,  and  there  was  no  special  necessity  made  to  appear  for  making  a 
transfer  of  the  property,  the  Court  of  Equity,  in  the  exercise  of  its  discre- 
tion, refused  to  order  a  transfer  of  the  estate  to  the  hands  of  a  guardian  ap- 
pointed in  such  other  State. 

Cause  removed  from  the  Court  of  Equity  of  Eowan  county. 

This  was  a  petition  by  a  guardian,  in  another  State,  to  ob- 
tain the  property  of  his  ward  in  the  hands  of  a  guardian  here. 

The  petition  is  filed  by  George  B.  Douglas,  the  father  of 
the  ward,  George  C,  Douglas,  alleging  that  in  the  month  of 
April,  1858,  he  was  duly  appointed  by  the  Court  of  Ordinary 
of  Dougherty  county,  in  the  State  of  Georgia,  guardian  of  the 
person  and  property  of  his  said  son,  and  gave  bond  with  two 
good  sureties,  according  to  the  requirements  of  the  law,  as  it 
is  in  that  State.  An  exemplified  copy  of  such  appointment, 
with  the  bond  taken,  is  filed,  and  depositions  are  taken,  es- 
tablishing the  validity  of  the  bond  as  to  form,  and  as  to  the 
solvency  and  pecuniary  ability  of  the  sureties.  The  petition 
states,  that  in  the  year  1858,  the  ward  was  about  fourteen 
years  old,  and  that  it  is  his  purpose,  and  that  of  the  petitioner, 
his  father,  to  remain,  permanently,  in  the  State  of  Georgia. 
The  petition  sets  out  further,  that  as  guardian  of  the  person 
of  his  son,  he  has  been  allowed  for  the  support  and  mainten- 
ance of  his  son,  since  the  year  1855,  by  the  Court  of  Equity  of 
Rowan,  the  annual  sum  of  $300,  which,  in  the  year  before  the 
petition  was  filed,  to  wit,  in  1858,  was  increased  to  $400. — 
The  answer  of  the  defendant  is  filed,  and  discloses  the  fact, 
that  the  estate  of  his  ward  is  between  25,000  and  30,000  dol- 
lars ;  that  he  has  not  yet  fully  settled  with  the  former  guar- 
dian, but  he  thinks  there  will  be  about  that  amount ;  that  in 
January,  1859,  by  a  decree  of  the  Court  of  Equity  of  the 
county  of  Rowan,  N.  C,  the  negroes  of  his  ward  were  sold  at 


DECEMBER  TERM,  1860.  21 

Douglas  V.  Caldwell 

public  auction,  and  bonds,  bearing  interest  from  date,  well 
secured  by  sureties,  were  taken  by  a  commissioner  appointed 
by  said  Court,  and  that  wlien  the  answer  was  tiled,  the  credit 
had  not  expired.  The  answer  also  sets  out,  that  about  twenty- 
ifive  hundred  dollars  of  the  fund  arose  upon  land,  which  was 
sold  by  a  decree  of  the  Court  of  Equity  of  Rowan,  which  also 
is  investd  in  bonds,  with  good  security,  bearing  interest. 

The  evidence  taken  in  the  cause,  clearly  established  the 
tacts  set  out  in  the  pleadings.  The  cause  being  set  down  for 
hearing  on  the  bill,  answer,  exhibits  and  proofs,  was  sent  to 
this  Court  by  consent. 

Fowle,  for  the  plaintiff. 
Wilson^  for  the  defendant. 

Manly,  J.  There  are  several  reasons  which  induce  us  to 
deny  the  object  of  tlie  petition  : 

The  minority  of  the  ward  is  now  of  short  duration.  The 
fund  is  safely  invested  in  interest-bearing  stocks  of  medium 
value,  and  with  respect  to  a  portion  of  it,  at  least,  it  cannot 
be  changed,  without  loss,  at  this  time.  The  unavoidable  loss- 
es and  hazards  of  collecting  and  re-investing  so  large  an 
amount,  makes  such  a  measure  inexpedient  in  any  stage  of  a 
minor's  wardship.  There  ought  to  be  some  object  of  prima- 
i-y  importance  m  view  to  justify  it,  so  near  the  close.  No 
such  object  is  suggested.  The  transmission  to  the  guardian 
■of  the  ward's  person  of  such  amounts,  as,  from  time  to  time, 
may  be  deemed  proper  and  necessary  for  his  maintenance 
and  education,  at  thisimportant  period  of  his  life,  is  matter  of 
kittle  inconvenience.  Beyond  this,  we  can  conceive  of  no 
reason  for  the  removal  of  the  fund  at  this  time,  and  against 
it  stands  the  risks  and  incidental  losses,  which  must,  necessa- 
rily, attend  the  transfer. 

The  petition  sets  forth,  that  a  portion  of  the  fund  belonging 
to  the  ward,  consists  of  moneys  and  securities  for  moneys,  arising 
from  the  sale  of  land.  This,  in  connection  with  the  provision 
in  the  Rev.  Code,  chap.  54,  sec.  33,  suggests  another  reason, 


m  THE  SUFKEME  COUKT. 


Thompson  v.  Deans. 


•which  has  some  weight  in  influencing  the  discretion  of  the 
Court :  The  Code  provides,  that  when  personalty  is  substi- 
tuted for  realty  by  a  sale  of  a  minor's  propert}^  the  substitu- 
ted personalty  shall  be  enjoyed,  alienated,  and  devised  and 
shall  descend,  as  by  law,  the  property  sold,  would  have  done, 
had  it  not  been  sold,  until  it  shall  be  restored  b}^  the  owner, 
to  its  original  character.  Considering  this  part  of  the  fund, 
therefore,  as  real  estate,  subject  to  descend  upon  the  heirs-at- 
law  of  the  present  owner,  a  further  reason  for  retaining  it 
within  the  jurisdiction  of  the  Court,  until  the  ward  is  of  age, 
is  apparent.  Upon  the  whole  case,  we  are  of  opinion  that* it 
is  unadvisable,  at  the  present  time,  to  make  a  decree  for  the 
removal  of  the  estate. 

The  petition  should  be  dismissed,  but  without  costs. 

Per  Cueiam,  Petition  dismissed. 


ALFRED  THOMPSON  AND  OTHEES-  agmmt  JOHN  DEANS. 

AVliere  a  dispute  existed  between  the  owners  of  contiguous  lands  as  to  their 
dividing  lines,  and  it  Avas  agreed  in  writing  to  submit  the  matter  to  arbi- 
tration, arKl  to  stand  to  and  abide  ly  such  lints  as  should  be  made  and  laid 
doion  by  the  referees,  and  the  arbitrators  made  an  award  designating  divid- 
ing lines  between  the  parties,  which  the  recusant  party  failed  to  show  were 
erroneous,  it  was  held  a  proper  case  for  the  Court  to  decree  a  specific  per- 
formance. 

Cause  removed  from  tlie  Coui-t  of  Equity  of  Kash  county. 

This  was  a  bill  to  compel  a  specific  performance  of  an 
award.  John  Mathis,  Alfred  Thompson,  one  of  tlie  plaintiffs, 
and  the  defendant  owned  contiguous  lands,  and  a  disagree- 
ment having  arisen  among-  the  three  as  to  the  dividing  lines 
between  them,  they  entered  into^  a  penal  obligation,  dated 
19th  of  April,  1&51,  conditioned  as  follows :     "  Whereas  there 


DECEMBER  TERM,  1860. 


23 


Thompson  v..  Deans. 


is  a  dispute  between  the  said  John  Deans,  Alfred  Thompson 
and  John  Mathis,  in  regard  to  the  dividing  lines  of  their  lands, 
and  the  said  parties  liave  referred  the  said  dispute  to  Exum 
L.  Curl,  Jesse  Beal  and  A.  B.  Baines,  to  make  lines  and  settle 
said  dispute ;  now,  therefore,  if  the  above  bounden  John 
Deans,  Alfred  Thompson  and  John  Mathis,  their  heirs,  exec- 
utors and  assigns,  shall  stand  to  and  abide  by  the  said  lines,  as 
they  shall  be  made  and  laid  down  by  the  said  referees,  and  let 
each  peaceably  enjoy  the  same,  as  allotted  to  him  by  the  said 
referees,  then  the  above  obligation  to  be  void,  otherwise,  to 
remain  in  full  force  and  effect."  Signed  and  sealed  by  the 
parties  mentioned.  The  abitrators  met  on  the  day  the  sub- 
mission bond  was  signed,  and  having  all  the  parties  present, 
went  upon  the  premises  and  surveyed  such  lines  ot  the 
several  tracts  as  at  all  concerned  the  controversy,  and  exam- 
ined such  deeds  and  living  witnesses  as  were  produced.  The 
matters  in  controversy  may  be  illustrated  by  the  follow- 
ing diagram : 

0  D  I 


Dean's  Lands. 

i  *'      / 

/             Thompson's  Land. 

B 

/         j  A                  Thos^.  norm 

i     Tho'mpson'3 

line. 

\ 

Eatry. 

G 

E  1          F 

The  defendant  had  insisted  that  the  true  boundary  of  his 


U  IK  THE  SUPREME  COURT. 

Thompson  v.  Deans. 

land  was  as  represented  by  the  letters  G,  F,  D,  whereas,  the 
plaintiffs  said  it  was  G,  E,  C,  so  that  the  land  in  dispute  is 
that  embraced  in  the  area  E,  F,  D,  C,  of  which  the  spaces  A, 
B,  H,  and  E,  F,  A,  B,  were  claimed  by  Thompson,  and  the 
rest  of  it  by  Mathis. 

After  examining  into  the  matter,  the  arbitrators  made  up 
and  delivered  to  the  parties  the  following  award  :  Know  all 
men  by  these  presents  that  we,  the  undersigned  referees,  hav- 
ing been  called  on  by  John  Deans,  Alfred  Thompson  and 
John  Mathis,  to  settle  a  dispute  in  regard  to  the  lines  of  land 
between  them,  and  having  met  on  said  lands  on  19th  day  of 
April,  1851,  do  agree  to  the  following  boundaries  viz,  begin- 
ning at  a  lightwood  pine  (G),  Dean's  corner  in  A.  Thompson's 
line,  then  east  130  poles  to  a  stake,  Dean's  corner  in  Thomp- 
son's line  (F),  then  JN^orth  to  the  original,  Thomas  ITorne  line 
(A),  then  along  the  said  line  West  to  a  stake,  on  the  West 
side  of  the  Great  Branch,  Thompson's  corner  in  Dean's  line 
(B),  thence  iSTorth,  a  line  of  marked  trees  to  a  stake,  Dean's 
corner,  in  Mathis  line  (C)." 

By  which  award,  it  will  be  seen,  that  Deans  obtained  of 
Thompson  the  area  E,  F,  A,  B,  which  is  about  seven  acres, 
and  Thompson  and  Mathis  obtained  of  the  land  claimed  by 
Deans,  the  space  B,  A,  D,  C,  about  forty  acres.  It  appears 
from  the  testimony,  that  on  the  delivery  of  this  award  each 
party  took  possession  according  to  the  lines  fixed  upon  by  the 
arbitrators,  and  in  that  manner  continued  to  hold  until  some 
time  after  the  death  of  John  Mathis,  when  the  defendant  en- 
tered upon  the  territory  embraced  in  the  figure  B,  A,  D,  C, 
and  still  holds  the  same  in  his  possession.  Also,  that  he  con- 
tinues in  possession  of  the  land  E,  F,  A,  B,  surrendered  to 
him  by  the  award.  The  suit  was  brought  by  Thompson  who 
ofiered  to  make  title  to  the  part  taken  from  his  claim,  and  by 
the  children  and  heirs  at  law  of  Mathis,  and  the  prayer  is  for 
a  specific  performance  of  the  award  by  making  deeds,  &c., 
and  for  an  injunction.  The  defendant  in  his  answer  insists 
that  there  is  a  palpable  mistake  in  the  award  of  the  arbitra- 
tors, and  that  it  would  be  hard  and  unconscionable  for  the 


DECEMBER  TERM,  1860. 


Thompson  v.  Deans. 


plaintiffs  to  have  a  specific  execution  of  it.  The  proofs  taken 
in  the  case  are  voluminous  and  contradictory,  but  it  seems 
that  the  arbitrators  based  their  judgment  chiefly  on  the  fact 
that  tlie  lines  adopted  by  them  were  old  marked  lines,  corres- 
ponding in  date  with  the  deeds  of  tlie  parties,  and  there  were 
no  marks  on  the  lines  rejected  by  them.  The  cause  w^as  heard 
upon  bill,  answer,  proofs  and  exhibits. 

JS.  F.  Moore  and  Dortch,  for  the  plaintiffs. 
Miller,  Foiole  and  Iio<jers,  for  the  defendant. 

Manly,  J.  The  bill  is  to  enfoi-ce  an  award  by  compelling 
a  specific  execution.  Tlie  submission  appears  to  be  hj  agree- 
ment hi2)ais,  and  by  reference  to  it,  it  is  found  the  arbitrators 
are  authorised  to  make  lines  and  settle  tlie  dispute  then  exist- 
ing between  the  parties  in  regard  to  their  dividing  lines ;  and 
they  bind  themselves  to  abide  by  such  lines  as  shall  be  made 
and  laid  down  by  such  referees,  and  to  allow  each  other 
peaceably  to  enjoy  the  same  as  alloted.  The  referees  laid 
down  a  line  of  division,  and  the  parties,  thereupon,  adjusted 
their  respective  possessions  in  conformity  with  the  same. 

After  two  or  three  years  acquiescence  by  all  concerned,  the 
defendant,  Deans,  took  possession  again  of  a  parcel  of  the  land 
which  he  had  abandoned  under  the  award,  and  this  bill  is 
brought  to  compel  him  to  abide  by  the  lines  established,  and 
to  allow  each  peaceably  to  enjoy  tlie  part  allotted  to  him. 

We  do  not  perceive  why  this  object  may  not  be  accomplish- 
ed by  the  bill.  By  the  submission,  the  parties  contracted  to 
do  what  the  arbitratoi-s  might  direct.  When  the  latter, 
therefore,  made  their  decision,  the  submission  and  award  to- 
gether, amounted  to  an  agreement ;  and  as  this  agreement  is 
plainly  executory  in  its  nature,  it  is  in  substance  the  case  of 
an  executory  agreement  under  a  penalty.  The  enforcement 
of  such  an  agreement,  specifically,  is  a  familiar  subject  of 
®^^"^y  Jui'Jsdiction.  In  Russell  on  Arbitrators  525,  it  is  said, 
a  bill  will  lie  to  enforce  a  specific  performance  of  an  award, 
whenever  the  matter  directed  by  it  is  such  that  it  would  be 


26  m  THE  SUPREME  COURT. 

Thompson  v.  Deans. 

enforced  by  the  court  as  an  agreement  or  contract — especial- 
ly when  the  award  be  to  do  any  thing  in  respect  to  lands. — 
This  is  confirmatory  of  onr  view. 

The  award,  it  will  be  seen,  does  not  specially  require  the 
parties  to  release  or  convey  to  each  other,  but  this,  we  think, 
follows  from  the  making  of  the  line  by  the  arbitrators,  taken 
in  connection  with  the  terms  of  the  submission.  The  parties 
agree  to  end  all  disputes  by  abiding  by  the  line  to  be  mS^de, 
and  allowing  each  other  to  enjoy  quietly,  in  conformity  with 
the  line.  It  is  a  private  submission,  and  we  think  it  clear,  by 
the  terms  of  it,  that  the  arbitrament  is  conclusive  as  to  the 
righls  of  the  parties  to  the  land  in  controversy  between  them ; 
and,  as  the  award  does  not  convey  the  title,  it  would  seem  to 
be  manifestly  intended  that  their  rights  should  be  made  effec- 
tual by  conveyances,  and  that  thus,  all  dispute  might  be  ended. 
In  the  case  of  Carter  v.  Sarns,  4  Dev.  and  Bat.  182,  the  arbitra- 
tors agreed  that  defendant  should  pay  all  costs,  and  they  assess- 
ed plaintiff's  damages  to  $100.  It  was  held  that  the  award 
was  entitled  to  a  liberal  construction,  and  that  it  should  be  in- 
tended that  the  defendant  was  to  pay  the  $100  to  the  plaintiff. 
The  cases  are  similar.  In  neither,  can  the  declared  rights  of 
the  parties  be  made  effectual,  except  by  a  construction  accord- 
ing to  a  reasonable  intendment. 

This  is  what  is  called  "certainty  to  a  common  intent,"  in 
the  definitions  given  of  the  degrees  of  certainty  required  in 
law  proceedings ;  and  this  degree  is  all  that  is  required  in  an 
award  ;  according  to  what  is  said  in  tiie  case  of  Cartel'  v.  Sams, 
above  referred  to. 

The  only  other  enquiry  which  arises  upon  the  pleadings 
and  proofs  in  the  cause,  is  whether  the  award  be  such  as  the 
Court  will  enforce  specifically :  The  parties  recite  in  their 
submission  bond,  that  a  dispute  existed  between  them  as  to 
the  division  lines  of  their  lands,  and  they  refer  it  to  the  arbi- 
trators to  make  lines.  Upon  examination  of  the  proofs  in 
connection  with  the  terms  of  this  submission,  the  propriety  of 
the  plenary  power  given  the  arbitrators  is  apparent.  The 
boundaries  are  left  in  great  doubt,  after  the  voluminous  proofs 


"  DECEMBER  TERM,  1860.  St 

Alston  V.  Lea. 

now  on  file  are  all  considered  ;  so  far,  therefore,  from  its  be- 
ing hard,  unconscientious  or  fraudulent,  the  arbitrament  at  the 
time,  and  upon  the  terms  agreed  on,  was  a  measure  of  wisdom 
for  all  parties.  There  is  nothing  brought  forward  in  the  proofs 
which,  regarding  the  award  as  of  no  higher  obligation  than  a 
contract,  would  prevent  a  court  of  equity  from  ordering  its 
specific  execution. 

A  decree  may  be  drawn,  directing  the  parties  to  execute 
deeds  of  release  to  each  other  for  the  parcels  of  land  awarded 
to  each  by  the  division  lines  established  by  the  arbitrators. 

Per  Curiam,  Decree  accordingly. 


JOHN  C.  ALSTON  AND  OTHERS  agairisi  JOHN  LEA. 

Where  a  husband  devised  and  bequeathed  as  follows :  "  I  give  and  bequeath 
to  my  beloved  wife  D  A,  after  the  payment  of  my  just  debts,  all  my  property, 
real,  personal  and  perislial^le,  to  be  hers  in  fee  simple,  so  that  she  can  have 
the  right  to  give  it  to  our  six  children  as  she  may  think  best,"  it  was  held 
that  under  the  terms  of  the  will,  the  testator's  widow  had  the  power  to 
sell,  at  her  discretion,  any  one  part  of  the  property  for  the  payment  of  the 
debts  of  the  testator,  so  as  to  release  another  part  from  such  debts;  and  Battle, 
J.  was  strongly  inclined  to  the  opinion  that  she  took  an  absolute  interest  in 
all  the  propert)'. 

Cause  removed  from  the  Court  of  Equity  of  Halifax  county. 

The  only  question  in  this  case,  arises  on  the  construction  of 
the  Avill  of  John  Alston  ;  the  material  portions  of  which  are 
a%  follows  : 

''Item  1st.  It  is  my  will  and  desire  that  all  my  just  debts 
are  to  be  paid,  and  for  the  purpose  of  paying  said  debts,  I 
wish  negro  feJlow,  Cudge,  negro  boy,  Mack,  and  negro  girl, 
Milly,  to  be  sold,  and  if  necessary,  to  sell  my  other  property, 
personal  or  real.     I  wish  the  land  on  the  east  side  of  the  road, 


IN  THE  SUPREME  COURT. 


Alston  V.  Lea. 


and  also,  my  riglit  and  interest  in  the  negroes  held  by  John 
Crawlej^,  be  sold." 

"Item  2d.  I  give  and  bequeath  to  my  beloved  wife,  Dol- 
ly Alston,  after  the  payment  of  my  just  debts,  all  my  proper- 
ty, real,  personal  and  perishable,  to  be  hers  in  fee  simple,  so 
that  she  can  have  the  right  of  giving  it  to  our  six  children, 
Ann  M.  Arrington,  Mariam  B.  Allen,  Frances  A.  Alston,  John 
Alston,  Gid  Alston,  and  Thomas  M.  C.  Alston,  as  she  may 
think  best." 

The  bill  alledges  that  Mrs.  Alston  being  in  possession  of  the 
tract  of  land,  set  out  in  the  pleadings,  sold  and  conve3^ed  the 

same  to  the  defendant  for  the  sum  of  $ ,  and  that  by  the 

will  under  which  she  claimed,  she  was  appointed  a  trustee, 
and  was  seized  of  the  land  in  question,  for  the  use  and  bene- 
fit of  her  children,  the  plaintifi's,  and  that  the  defendant  was 
aware  of  these  provisions  of  the  will.  The  prayer  is,  that  the 
defendant  convey  to  the  plaintiif  the  laud  in  question,  and  ac- 
count for  the  rents  and  profits  thereof. 

To  this  bill,  the  defendant  demurred,  for  the  cause,  that  by 
their  own  showing,  Dollj^  Alston  was  not  a  trustee  for  the 
benefit  of  the  plaintiffs,  and  that  he  is,  therefore,  no  trustee 
himself,  and  is  not  bound  to  answer,  &c.  He  also,  answered 
the  bill  circumstantiatly,  and  says  that  after  the  fund  provid- 
ed for  the  payment  of  the  debts  of  John  Alston  was  exhaust- 
ed, there  was  a  further  indebtment  by  the  estate  of  about 
$1000  with  interest,  to  the  executor  of  Stirling  Johnston,  and 
an  execution  in  the  hands  of  the  sheriff  of  Halifax  for  that 
amount,  which  was  about  to  be  levied  on  the  slaves  belong- 
ing to  the  estate,  and  it  was  to  pa}''  this  debt,  and  protect  the 
negro-property  from  execution,  that  the  sale  in  question  was 
made  to  this  defendant,  and  the  money  paid  by  him  was  ap- 
plied entirely  to  the  satisfaction  of  this  debt ;  that  he  gi^e 
$102-1:,  whicli  he  thinks  was  a  fair  price  for  it ;  and  believed 
then,  and  still  believes,  that  he  got  a  good  title  for  it.  The 
cause  was  set  down  for  hearing  on  the  bill,  answer,  and  de- 
murrer, and  sent  to  this  Court  by  consent. 


^DECEMBER  TERM,  1860.  S^ 


Alston  V.  Lea. 


B.  F.  Moore,  and  Bcdchelor,  for  the  plaintiff. 
Coiiigland^  for  the  defendant. 

Battle,  J.  The  only  question  presented  by  the  pleadings, 
which  it  is  necessary  for  ns  to  consider,  is,  whether  Mrs.  Dol- 
ly Alston  took  such  an  interest  in  the  estate  of  her  hnsband, 
John  Alston,  by  virtue  of  his  will,  as  enabled  her  to  convey 
to  the  defendant  a  good  title  to  the  tract  of  land,  now  in  con- 
troversy. 

In  the  first  clause  of  his  will,  the  testator  directs  that  his 
debts  shall  be  paid,  and  for  that  purpose,  he  specifies  three 
slaves,  which  he  wishes  to  be  sold ;  and  if  it  should  be  found 
necessary  to  sell  more  property,  he  points  out  a  certain  tract 
of  land  and  his  "  right  and  interest"  in  certain  negroes,  then 
held  by  other  persons.  In  the  second  clause,  he  devises  and 
bequeaths  as  follows : 

"I  give  and  bequeath  to  ray  beloved  wife,  Dolly  Alston, 
after  paying  my  just  debts,  all  of  my  property,  real,  per- 
sonal and  perishable,  to  be  her's  in  fee  simple,  so  that  she  can 
have  the  i-ight  of  giving  it  to  our  six  children,  (Ann  Maria 
Arrington,  Mariani  B.  Allen,  Frances  A.  Alston,  John  Al- 
ston, Gid.  Alston  and  Thomas  M.  C.  Alston,)  as  she  may  think 
best."  The  plaintiffs  contend  that  under  a  proper  construc- 
tion of  this  clause,  the  testator's  widow  took  all  his  estate  af- 
ter the  payment  of  his  debts,  as  trustee  for  his  children,  and 
that  the  trust  conferred  upon  her  no  power  to  sell  the  land, 
and  that  consequently,  the  defendant,  having  purchased,  with 
a  notice  of  the  trust,  became  himself  a  trustee  for  the  testa- 
tor's children.  The  counsel  for  the  defendant,  objects  to  this 
construction,  and  insists  that  the  widow  took  an  absolute  es- 
tate for  her  own  use  in  the  property  given  her  by  the  will,  or  if 
she  took  in  trust  for  her  and  the  testator's  children,  she  took 
it  coupled  with  an  implied  power  to  sell  any  part  of  it,  at  her 
discretion,  and  to  apply  the  proceeds  in  any  manner  she 
might  think  best  for  the  children. 

There  is  no  class  of  cases,  arising  from  the  construction  of 
wills,  in  which  there  has  been  a  greater  fluctuation  of  deci- 


m  THE  SUPKEME  COURT. 


Alston  V.  Lea. 


sion  than  in  that  which  involves  the  enquiry,  whether  a  trust 
has  been  imposed  upon  a  devisee  or  legatee,  in  favor  of  other 
persons.  Technical  language  not  being  necessary  to  create 
a  trust,  any  words  of  recommendation,  request,  entreaty,  wish, 
or  expectation,  addressed  to  a  devisee  or  legatee,  have  been 
held  to  make  him  a  trustee  for  the  person  or  persons,  in  whose 
favor  the  expressions  were  used  ;  provided,  the  testator  point- 
ed out  with  sufficient  clearness  and  certainly,  both  the  sub- 
ject-matter and  the  object,  or  objects,  of  the  intended  trust. 
This  was,  of  course,  supposed  to  be  in  accordance  with  the 
testators  intention,  and  in  the  earlier  cases  a  very  slight  indi- 
cation of  such  intention  seems  to  have  been  deemed  sufficient. 
Thus,  in  Massey  v.  Sherman^  Amb,  Eep.  530,  where  a  testa- 
tor devised  copyholds  to  his  wife,  not  doubting  that  she  would 
dispose  of  the  same  to,  and  amongst,  his  children  as  she  should 
please ;  this  was  held  to  be  a  trust  for  the  children,  as  the 
wife  should  appoint.  Many  other  cases  (-of  a  similar  kind 
came  before  the  courts  from  time  to  time,  and  were  decided 
in  the  same  waj'^,  the  leaning,  in  each  case,  seeming  to  be, 
very  decidedly,  in  favor  of  a  trust.  At  last,  however,  the 
courts  began  to  doubt  whether  they  had  not  gone  too  far  in 
investing  with  the  efficacy  of  a  trust,  loose  expressions  of  the 
kind  above  referred  to,  which,  very  probably,  were  never  in- 
tended to  have  such  an  operation.  Under  the  influence  of 
this  change  of  judicial  interpretation,  the  case  of  Meredith  v. 
Heneage,  1  Sim.  E-ep.  542,  was  disposed  of  in"  the  House  of 
Lords.  There,  the  testator,  after  having  given  his  real  and 
personal  estate,  in  the  fullest  terms,  to  his  wife,  declared  that 
he  had  given  his  whole  estate  to  her  unfettered  and  unlimit- 
ed, in  full  confidence  and  the  firmest  persuasion,  that  in  her 
future  disposition  and  distribution  thereof,  she  would  distin- 
guish the  heirs  of  his  late  father,  by  devising  and  bequeath- 
ing the  whole  of  his  said  estate,  together  and  entire,  to  such 
of  his  father's  heirs  as  she  might  think  best  deserved  her  pre- 
ference. It  was  held  by  the  House  of  Lords,  confirming  a 
decree  in  the  Exchequer,  that  the  wife  was  absolutely  enti^ 
tied  for  her  own  benefit — Lord  Eldon,  considering  that  \i\Q 


DECEMBER  TERM,  1860.  31 

Alston  V.  Lea. 

testator  intended  to  impose  a  moral,  but  not  a  legal  obligation 
on  his  wife,  for  which  he,  as  well  as  Lord  Redesdale,  relied 
much  on  the  words  "  unfettered  and  unlimited."  In  this 
country  the  Supreme  Court  of  Pennsylvania,  has,  in  a  recent 
case,  M'here  the  whole  subject  is  much  discussed  and  consid- 
ered, been  governed  by  the  same  spirit  of  liberal  interpreta- 
tion. In  that  case,  in  the  matter  of  PennocJvS  Estate,  20 
Pen.  Rep.  268,  the  testator,  after  directing  the  payment  of 
his  debts,  provided  as  follows  :  "  I  will  and  bequeath  to  my 
wife,  the  use,  benefit  and  profits  of  all  my  real  estate  during 
her  natural  life ;  and  all  my  personal  estate  of  every  descrip- 
tion, including  ground  rents,  bank  stock,  bonds,  notes,  book- 
debts,  goods  and  chattels,  absohitely  ;  having  full  confidence 
that  she  will  leave  the  surplus  to  be  divided,  at  her  decease, 
justly  amongst  my  children,"  and  it  was  Jteld  that,  by  the 
will,  the  absolute  ownership  ot'  the  2>e)'sonal  property  was  giv- 
en to  the  widow,  with  an  expression  of  mere  expectation,  that 
she  would  use  and  dispose  of  it  discreetly  as  a  mother,  and 
that  no  trust  was  created  in  relation  to  it.  The  case  was  ably 
and  elaborately  argued  by  counsel,  on  both  sides,  and  in  the 
opinion  of  tlie  Court,  as  delivered  by  Lowkie,  J.,  the  doctrine 
of  both  the  Roman  and  the  English  law  on  the  subject,  is  re- 
viewed with  great  ability;  so  that  the  decision  is  justly  enti- 
tled to  more  than  ordinary  respect  and  consideration.  In  the 
course  of  the  opinion,  the  learned  Judge  says  :  "  It  cannot  be 
denied,  that  tiiere  is  a  considerable  discrepancy  in  the  Eng- 
lish decisions  on  this  subject,  and  nothing  less  can  reasonably 
be  expected.  An  artificial  rule,  like  the  one  insisted  on  here, 
that  is  founded  on  no  great  piinciple  of  policy,  and  that  sets 
aside,  while  it  professes  to  seek,  the  will  of  the  testator,  must 
continually  be  contested,  and  must  be  frequentlj'  invaded. 
And  no  one  can  read  the  English  decisions  on  this  subject, 
without  suspecting  that  all  important  wills,  wherein  similar 
words  are  found,  became  the  subjects  of  most  expensive  con- 
tests, and  gave  rise  to  those  family  quarrels,  which  are  the 
worst  and  most  bitter  and  distressing  of  all  sorts  of  litigation. 
We  m{\y  well  desire  that  such  a  rule  may  never  constitute  a 


32  IN  THE  SUPREME  COURT. 

Alston  V.  Lea. 

part  of  our  law.  It  rejects  the  plain,  common  sense  of  ex- 
pressions, and  it  is  not  in  hnmau  nature  to  submit  without  a 
contest." 

In  accordance  with  the  spirit  of  this  decision,  we  find  that, 
not  only  among  the  later  English  cases,  but  among  those  of 
several  of  the  States  of  this  Union,  "  a  strong  disposition  has 
been  indicated  in  modern  times  not  to  extend  this  doctrine  of 
recommendatory  trust ;  but  as  far  as  the  authorities  will  al- 
low, to  give  the  words  of  wills  their  natural  and  ordinary 
sense,  unless  it  i:^  clear  that  they  were  designed  to  be  used  in 
a  peremptory  sense.  See  2  Sto.  Eq.  Jur.  sec.  1069  ;  jScde  v. 
Moore,  1  Sim.  34;  Laioless  v.  SJimo,  1  Lloyd  and  Goold,  15J:; 
Forclv.  Fowler,  3  Bea.  156;  Knight  v.  Knight,  lb.  148; 
Hart  V.  Hart,  2  Desaus.  83  ;  Van  Dijch  v.  Van  Buren^  1 
Caines  84;  Ball  v.  Vardy,  2  Yes.  (Sumner's  Ed.)  270,  note 
b."     1  Jarm.  on  Wills,  (Perkins'  Ed.)  339,  note  1. 

Tested  by  the  principle  of  these  modern  adjudications  there 
is  strong  ground  tor  contending  that  the  testator's  widow,  in 
the  case  now  before  us,  took  an  absolute  interest  in  all  his  es- 
tate under  his  will.  Such  seems  to  be  the  plain  import  of  the 
words  ;  for  he  gives  it  to  her  "  to  he  hers,^''  in  the  strongest 
language  which  he  could  employ,  and  he  gives  it  to  her,  not 
for  their  children,  so  that  they  may  have  a  direct  interest  in 
it,  but  "  so  that  she  can  have  the  right''''  of  giving  it  to  them 
"  as  she  may  think  best."  His  intention  appears  to  have 
been,  to  substitute  her  in  the  place  of  himsdf,  and  to  place 
her  as  he  had  been,  under  the  moral,  but  not  legal,  obligation 
to  provide  for  children  who  were  as  much  hers  as  his.  And 
considering  that  he  was  much  in  debt,  of  which  he  shows  by 
the  first  clause  of  his  will  tliat  he  was  aware,  and  that  some  of 
his  ciiildrcn  were  grown  up  and  married,  we  need  not  be  sur- 
prised that  he  was  anxious  to  provide  for  his  "  beloved  wife," 
and  to  leave  her  children  dependent  upon  her,  ratlier  than 
her  upon  them. 

This  construction  is  not  at  all  opposed  by  the  decision  of 
this  Court  in  the  case  of  Little  v.  Bennett,  5  Jones'  Eq.  156,  re- 
ferred to  and  relied  on  by  the  counsel  for  the  plaintiffs.    There 


DECEMBER  TERM,  1860.  33 

Alston  V.  Lea. 

tlie  devise  and  bequest  by  the  testator  to  his  widow  was  ex- 
pressly "  to  raise  and  educate  my  children  and  to  dispose  of 
the  same  among  all  my  children  as  their  circumstances  may 
seem  to  require."  The  intention  to  create  a  trust  for  the  chil- 
dren, was  too  direct  and  obvious  for  the  Court  to  hesitate  a 
moment  in  giving  effect  to  it. 

But  we  need  not,  and  do  not,  decide  this  question,  because 
we  are  clearly  of  opinion  that  if  the  testator's  widow,  in  the 
case  now  under  consideration,  did  take  all  his  proi)erty,  real 
and  personal,  in  trust  for  their  children,  slie  took  it  with  a 
power,  necessarily  implied  from  the  terms  of  the  will,  to  sell 
either  the  land  or  the  personal  chattels,  at  her  discretion,  and 
to  give  the  proceeds  to  the  ciiildren,  or  to  reinvest  for  their 
benefit.  The  tract  of  land  which  she  did  sell  to  the  defend- 
ant, was  sold,  as  is  clearly  proved  by  the  testimony,  to  save 
the  slaves,  forming  part  of  the  estate,  from  being  taken  under 
execution  for  the  payment  of  the  testator's  debts.  The  land 
may  be,  therefore,  regarded  as  having  been  converted  into 
slaves  for  the  benefit  of  the  children,  and  this,  we  are  satis- 
tied,  was  within  the  scope  of  her  discretionary  power  over  the 
estate. 

This  view  of  the  question  is  strongly  corroborated  by  the 
adjudication  of  the  Court  of  Appeals  in  Virginia,  in  the  case 
of  Steele  v.  Zivesay,  11  Grat.  Rep.  454,  to  which  our  attention 
tion  was  called  by  the  counsel  for  the  defendant.  In  that 
case,  the  testator  said  that  "having  implicit  confidence  in  my 
beloved  wife,  and  knowing  that  she  will  distribute  to  each  of 
my  childaen  in  as  full  and  tair  a  manner  as  I  could,  I  hereby 
invest  ray  said  beloved  wife  with  the  right  and  title  of  all  my 
property,  both  real  and  personal,  to  dispose  of  to  each  of  my 
children  in  any  way  she  may  think  proper  and  right."  By  a 
subsequent  clause  of  the  will  it  was  provided  that  if  the  wid- 
ow shotdd  die  without  making  a  will,  the  children  should 
have  an  equal  distribution  of  the  testator's  estate.  After  a 
full  argument,  it  was  decided  by  the  Court  that  the  widow 
iiad  an  unlimited  discretion  as  to  the  time  and  manner  of  dis-^ 
tributing  the  property  {imong  the  testator's  children.     She 

3 


34  IN"  THE  SUPREME  COURT. 

Whitley  v.  Foy. 

might  distribute  it,  or  any  part  of  it,  in  her  life-time,  or  at  her 
death  by  any  instrument  proper  for  the  purpose,  or  she  might 
distribute  to  either  child  such  kind  of  property  as  she  might 
choose  to  give  him  or  her.  It  was  held  further,  that  the  wid- 
ow might  sell  or  convey  the  whole,  or  any  part  of  the  proper- 
ty and  distribute  the  proceeds  of  sale.  xYnd  that  having  a 
discretion  as  to  the  time  and  manner  of  distribution,  a  pur- 
chaser of  land  from  her  was  not  bound  to  see  to  the  applica- 
tion of  the  purchase  money. 

The  course  of  argument  which  led  the  Court,  in  that  case, 
to  the  conclusion  that  the  will  of  the  testator  conferred  upon 
liis  widow  an  implied  power  of  sale,  will  lead  to  the  same  re- 
sult in  our  case.  Here  the  legal  title  of  the  testator's  whole 
estate  of  every  kind,  is  unquestionably  vested  in  his  widow, 
and  the  property  is  declared  to  be  hers,  for  the  very  purpose 
that  she  may  have  "  the  right  of  giving "  it  to  the  children 
"as  she  ma^'-  think  best."  The  intention  of  the  testator  to 
give  his  wife  an  ample  discretiona.iy  power  over  his  estate,  to 
l3e  exercised  for  the  benefit  of  his  children,  is  too  clearly  mani- 
fested to  be  disregarded.  The  bill  must  be  dismissed  with 
costs. 

Per  Curiam,  Decree  accordingly. 


JOSEPH  C.  WHITLEY  AND  OTHERS  Ex's  against  CHRISTOPHER 
FOY,  Adinr  AND  OTHERS. 

Where  an  agent  deposited  money  in  bank  as  an  ordinary  deposit,  stating  at 
the  time  that  it  was  the  money  of  his  principal,  but  desired  the  officer  to 
place  the  money  to  his  own  credit  on  the  books  of  the  bank,  alleging  that 
he  might  have  occasion  to  use  it  for  the  benefit  of  his  principal,  and  the 
agent  died  shortly  afterwards  insolvent,  it  Avas  held  that  the  principal  was 
entitled  to  the  fund,  and  might  follow  the  same  in  a  court  of  equity. 


DECEMBER  TEJRM,  1860.  35 

Whitley  ».  Foy. 

Cause  removed  from  the  Court  of  Equity  of  Craven  county. 

Edward  S.  Jones,  the  testator  of  the  plaintiffs,  resided  in 
the  State  of  Alabama,  but  owned  a  plantation  and  slaves  in 
the  county  of  Onslow,  in  the  State  of  North  Carolina,  upon 
which  he  was  engaged  in  planting  cotton.  The  intestate  of 
the  defendant,  Foy,  one  John  Oliver,  was  the  overseer  for  the 
said  Jones  upon  this  plantation,  and  was  in  the  habit  of  dis- 
posing of  the  crops  as  his  agent.  In  the  spring  of  1858,  Oli- 
ver went  to  Newborn  and  sold  the  crop  of  the  preceding  year, 
and  received  the  money  therefor,  which  amounted  to  the  sum 
of  $1000.  This  money  the  said  Oliver  deposited  at  the 
Branch  of  the  Bank  of  the  State  at  Newbern.  When  he  made 
tliis  deposit,  he  stated  that  it  was  the  money  of  Edward  S. 
Jones,  but  that  he  wanted  it  placed  to  his  own  credit  on  the 
books  of  the  bank,  as  he  might  have  occasion  to  use  it  for  the 
benefit  of  his  principal,  as  he  lived  in  Alabama,  Shortly  af- 
terwards, Oliver  died,  when  the  plaintiffs'  testatof  Jones,  made 
a  demand  on  the  officers  of  the  bank  for  the  money,  which 
they  refused  to  pay.  It  was  admitted  by  the  plaintifts'  coun- 
sel in  this  case,  that  the  deposit  was  not  a  special  one,  but 
that  the  money  was  mingled  with  the  other  monies  of  the 
bank. 

The  bill  is  filed  to  obtain  a  decree  for  the  payment  of  the 
fund  to  the  plaintifis  as  the  executors  of  the  said  Jones,  who 
has  since  died ;  the  claim  is  resisted  by  the  defendants,  the 
administrators  of  John  Oliver,  who  claim  the  fund  as  assets 
of  the  estate  of  their  intestate.  The  bank  of  the  State  is  also 
made  a  party  defendant. 

The  cause  being  set  for  hearing  upon  the  bill,  answer,  ex- 
iiibits  and  proofs,  was  transferred  to  this  Court  by  consent. 

J.  W.  Bryan^  for  tiic  plaintiffs. 
Huhbard,  for  the  defendants. 

Batfle,  J.  The  claim  of  the  plaintiffs  to  the  funds  in  con- 
Iroversy,  is  clearly  sustained  both  by  reason  and  authority.— 
This  contest  being  between  the  personal  representatives  of  a 


36  IN  THE  SUPKEME  COUET. 

Whitley  v.  Foy. 

principal  and  agent  for  an  amount  of  money  which  the  agent 
had  received  for  the  principal,  which  he  always  admitted  to- 
belong  to  the  principal,  the  latter  certainly  has  the  right  ta 
claim  what  is  conceded  to  be  his  own,  so  long  as  he  can  iden- 
tify it.  This  proposition  is  too  plain  to  be  denied,  but  the 
counsel  for  the  defendant,  Foy,  the  administrator  of  the  agent, 
insists  that  the  money  cannot  be  identified,  because  it  was  de- 
posited in  bank  as  an  ordinary,  and  not  a  special  deposit,  to 
the  credit  of  the  agent,  and  that  it  tliereby  became  the  money 
of  the  agent,  and  he  at  the  same  time  became  the  debtor  of 
the  principal  for  the  amount.  That  cannot  be,  because  it  was 
deposited  expressly  as  the  money  of  the  princi[)al  and  not  of 
the  agent,  and  was  placed  by  the  latter  to  his  own  credit,  sole- 
ly for  the  purpose  of  enabling  him  to  x)ay  it  with  more  con- 
venience to  his  principal,  or  apply  it  to  his  use. 

Such  being  the  state  of  the  case,  the  rule  applicable  to  it 
is,  that  "a  principal  in  all  cases,  where  he  can  trace  his  pro- 
perty, whether  it  be  in  the  hands  of  the  agent,  or  of  his  repre- 
sentatives or  assignees,  is  entitlecl  to  reclaim  it,  unless  it  has 
been  transferred  honoyjide  to  a  purchaser  of  it  or  his  assignee,  for 
value  without  notice.  In  such  cases,  it  is  wholly  immaterial 
whether  the  property  be  in  its  original  state  or  has  been  con- 
verted into  money,  securities,  negotiable  instruments  or  other 
property'-,  if  it  be  distinguishable  and  separable  from  the  oth- 
er property  or  assets,  and  has  an  earmark  or  other  appropri- 
ate identity ;  Taylor  v.  Phimmei\  3  Maul,  and  Sel.  562 ;. 
Yeil  V.  Mitchell  4  Washington  C.  C.  Eep.  105 ;  Jackson  v. 
V.  Perhins,  3  Mason's  Eep.  232  ;  Scott  v.  Surman,  Willes' 
Eep.  400  ;  Whitecomh  v.  Jacot,  1  Salk  Eep.  166  ;  Jaclcson  v., 
Clark^  1  Young  and  Jer.  216."  The  above  extract  is  from  the 
case  of  0-vefseers  of  the  Poor  of  Norfolk  v.  The  Bank  of 
Virginia^  2  Grat.  Eep.  544,  in  which  it  was  held  that  the 
plaintiffs  were  entitled  to  money  deposited  to  his  own  credit 
by  their  agent,  he  having  soon  after  died  insolvent.  The  same 
principle,  which  is  that  of  following  a  fund  in  equity,  is  clear- 
ly settled  by  several  decisions-  in  our  State.     See  Black  v. 


DECEMBER  TERM,  1860.  37 


Carman  v.  Pajre. 


^ay,  1  Dev.  and  Bat.  Eq.  433  ;  Bateman  v.  LatJiam,  3  Jones 
Eq.  35,  and  Wood  v.  jReeves,  5  Jones  Eq.  271. 
The  plaintiffs  are  entitled  to  a  decree  for  the  amount  claimed. 

Pee  Cueiaai,  Decree  accordingly. 


TERESA  CARMAN  against  STEPHEN  PAGE. 

Where  both  parties  to  a  trade  for  the  sale  .of  slaves  had  full  time  for  delibera- 
tion, and  the  deeds  were  executed  without  secrecy,  and  attested  by  a  re- 
spectable witness,  and  there  was  no  evidence  of  mental  incapacity,  and  no 
sufficient  proof  of  a  gross  inadequacy  of  price,  it  was  held  that  the  transac- 
tion should  be  sustained. 

-Gross  inadequacy  ofprice  is  not  sufficient,  in  itself,  to  set  aside  a  deed,  al- 
though it  is  a  strong  circumstance,  tending  with  others,  to  make  out  a  case 
of  fraud  or  imposition. 

Cause    removed  from   the   Court  of  Equity  of  Carteret 
county. 

The  bill  seeks  to  have  a  conveyance  of  certain  land  and 
slaves  set  aside,  on  the  ground  of  fraud  practised  in  procuring 
it.  It  alleges  that  the  plaintiff  was  joint-owner  with  her  sis- 
ter, one  Mary  Heath,  of  a  remainder  in  a  valuable  lot  of 
slaves,  dependant  upon  a  life-estate  in  one  Edmund  Heath, 
which  slaves,  it  allogesj  wore  worth  ten  or  twelve  thousand 
dollars.  The  bill  further  alleges,  that  in  the  summer  of  1857, 
defendant  applied  to  plaintiff  to  purchase  her  interest  in  said 
slaves,  having  several  times  before  importuned  her  to  sell 
them  to  him,  and  informed  her  that  he  was  the  owner  of  the 
interest  that  had  before  belonged  to  Mary  Heath,  and  offered 
$1000  for  plaintiff's  interest,  which  offer,  was  declined  ;  that 
fiome  days  after  this  conversation,  defendant  again  called  and 
informed  her  that  he  had  been  informed  by  a  gentleman  of 
the  bar,  that  there  was  some  doubt  about  the  title  to  the  re- 
mainder in  these  slaves,  after  the  death  of  Edmund  Heath, 


IN  THE  SUPREME  COURT, 


Carman  v.  Page. 


and  proposed  that  they  should  compro-mise  with  the  children 
of  Edmund  Heath,  who  were,  as  he  alleged,  the  claimants  of 
the  slaves,  and  would  bring  suit  for  them  when  the  life-estate 
determined  ;  that  some  time  after  this  last  interview  the  plain- 
tiff was  taken  sick,  and  that  while  prostrated  hj  disease,  she 
yielded  to  entreaties  of  the  plaintiff,  and  signed  the  deed  in 
question,  which  was  not  even  read  to  her  and  of  the  contents 
of  which  she  was  entirely  ignorant,  and  that  the  .  price  men- 
tioned in  said  deed,  was  only  $1100. 

The  answer  denies  that  the  defendant  importuned  the  plain- 
tiff, but  alleges  that  plaintiff,  on  several  occasions,  sent  for 
him  and  offered  to  sell  her  interest  in  the  slaves  at  the  price 
of  $1500,  and  that  on  the  occasion  when  the  deed  was 
made,  he  called  on  her  by  her  request ;,  that  the  terms  of  the 
sale  were  proposed  by  the  plaintiff  herself,  and  were,  that 
defendant  should  pay  her  100  dollars  down,  and  the  balance 
in  one,  two,  three,  four  and  five  years,  with  good  security^ 
without  interest,  and  that  this  was  a  fair  price,  as  Edmund 
Heath,  though  a  man  in  advanced  life,  being  between  seven- 
ty and  eighty  years  of  age,  was,  nevertheless,  of  robust  con- 
stitution, and  had  promise  of  a  long  life, 

Elizabeth  Pearce  deposed  that  she  was  acquainted  with 
the  plaintiff  in  1857;  that  just  before  the  execution  of  the 
deed  in  question,  plaintiff  sent  for  her,  and  desired  her  to  see 
the  defendant  and  request  him  to  call  and  see  her,  that  she 
might  sell  him  her  interest  in  the  slaves  ;  that  she  informed 
defendant  of  plaintiff's  request,  and  was  at  plaintiff's  house 
when  defendant  called  ;  that  the  former  offered  the  p-roperty 
for  the  price  of  $1500,  which  the  latter  refused  to  give ; 
but  offered  lier  $1000,  but  that  they  did  not  conclude  a 
bargain.  Witness  further  testified,  that  the  plaintiff  after- 
wards sent  for  her  again,  and  desired  her  to  request  defend- 
ant to  call  again,  which  she  did  ;  that  she  was  present  at  this 
interview,  and  that  plaintiff  still  asked  $1500,  which  defend- 
ant still  refused  to  give ;  that  the  plaintiff  then  offered  to  take 
$1100,  payable,  as  alleged  in  the  answer,  and  that  these 
terms  were  accepted  by  the  defendant ;  that  he  then  infornir- 


DECEMBER  TERM,  1860.  39 

Carman  v..  Page. 

ed  the  plaintiff,  that  he  would  have  the  notes  and  the  bill  of  sale 
drawn,  and  thereupon  left  the  house  ;  that  he  afterwards  re- 
turned with  one  O'Leary ;  that  Mrs.  Carman  was  sitting  on 
the  bed  ;  that  O'Leary  took  a  seat  near  her  and  read  the  bill 
of  sale  to  her  and  afterwards  read  the  notes  ;  that  the  $100 
was  then  paid  and  O'Leary  left,  and  that  Mrs.  Carman  seem- 
ed satisfied,  and  that  her  mind,  at  these  interviews,  was  as 
good  as  she  ever  saw  it ;  that  she  afterwards  had  many  con- 
versations with  her,  and  that  she  always  seemed  perfectly 
satisfied  with  the  whole  transaction. 

A  number  of  witnesses  testified  that  they  considered  the 
plaintiff  a  woman  of  sound  mind,  capable  of  transacting  or- 
dinary business,  and  also  that  $1000  was  a  fair  price  for  the 
remainder  in  the  property  dependant  on  the  life-estate  of  Ed- 
mund Heath. 

James  A.  Perry,  a  son-in-law  of  the  plaintiff,  testified  that 
he  had  managed  her  business  for  her  for  some  years,  and  that 
her  mind  was  weak,  and  that  she  was  easily  influenced. 

Dr.  O.  W.  Hughes  testified,  that  the  plaintiff  sent  for  him 
in  the  year  1857,  in  regard  to  these  negroes,  and  asked  him 
$1200  for  them ;  and  gave  as  a  reason  for  desiring  to  sell 
them,  that  she  was  on  bad  terms  with  her  son-in-law,  and 
wanted  to  realise  means  to  live  on. 

Daniel  O'Leary  testified,  that  he  drew  the  bill  of  sale  and 
the  notes  at  the  request  of  the  defendant,  and  went  with  him 
to  the  house  of  Mrs.  Carman,  and  read  them  over  to  her  twice 
or  three  times,  and  that  she  remarked  that  they  were  accord- 
ing to  the  contract.     This  witness  attested  the  bill  of  sale. 

The  cause  being  set  for  hearing  upon  the  bill,  answer,  exhib 
its  and  proofs,  was  transferred  to  this  Court  by  consent.  ♦ 

J.  W.  Bryan,  for  the  plaintiff. 
McBae,  for  the  defendant. 

Pearson,  C.  J.  The  allegations  of  the  bill  are  not  sustain- 
ed by  the  proof.  It  is  not  proved  that  the  plaintiff  was  of  un- 
sound mind  at  the  time   of  the   dealing  mentioned  in  the 


40  IN  THE  SUPEEME  COURT. 

Carman  v.  Page. 

pleadings.  There  is  no  proof  that  any  fraud  or  artifice  was 
resorted  to,  for  the  purpose  of  inducing  her  to  sell.  Both 
parties  had  full  time  for  deliberation,  and  the  deeds  were  ex- 
ecuted without  secrecy,  and  attested  by  a  respectable  witness. 
So,  the  plaintiflFhas  no  ground  to  stand  on,  except  the  allega- 
tion of  gross  inadequacy  of  the  price,  which  is  not  sufficient 
to  set  aside  a  deed,  although  it  is  a  strong  circumstance,  tend- 
ing with  others,  to  make  out  a  case  of  fraud  or  imposition. 

The  price,  in  this  case,  does  not  appear  to  have  been  gross- 
ly inadequate.  The  plaintiff  offered  several  times  to  sell  at 
$1500,  and  the  difierence  between  that  sum  and  $1100,  can 
hardly  be  treated  as  enough  to  make  out  the  imputation  of 
fraud.  Upon  the  whole,  we  are  satisfied  that  the  plaintiff 
had  made  up  her  mind  that  "  a  bird  in  the  hand  was  worth  two 
in  the  bush,"  and  having  some  fear  that  the  title  might  be 
drawn  into  question,  and  having  no  particular  wish  to  retain 
property,  of  which  she  could  not  have  the  enjoyment,  except 
as  a  fund  to  bestow  upon  her  nephews  and  -nieces,  who  were 
the  parties  by  whom  she  apprehended  her  title  might  be  dis- 
puted, was  willing  to  sell  at  a  "  low  figure."  And  the  de- 
fendant did  no  more  than  avail  himself  of  what  he  considered 
a  chance  "  for  a  speculation."  Such  dealings,  though  not  en- 
couraged by  the  courts,  are  not  forbidden  by  law. 

The  plaintiff  having  failed  to  establish  any  equity,  the  bill 
"will  be  dismissed. 

Pek  Cueiam,  Bill  dismissed. 


DECEMBER  TEUM,  1860.  ^% 


^IcNeill  V.  Bradley. 


DAVID  SWINDALL,  by  his  next  friend,  WILLIAM  J.  McNEILL,  v. 
WILLIAM  BRADLEY. 

Where  the  owner  of  a  life  interest  in  slaves,  a  demoralised  and  needy  man, 
who  had  made  a  sale  of  all  his  property,  enquired  of  a  person  whether  he 
could  be  subjected,  criminally,  if  he  removed  the  slaves  out  of  the  State, 
and  intimated  to  another,  after  a  suit  was  brought,  that  if  he  could  get  the 
slaves  in  his  possession,  the  remainderman  should  never  receive  any  bene- 
fit from  them,  it  was  held  a  proper  case  for  a  writ  of  sequestration. 

ArpEAL  from  an  order  made  by  French,  Judge,  at  the  Fall 
Term,  18C0,  of  tlie  Court  of  Equity  of  Bladen  count}'. 

The  cause  having  been  set  for  hearing,  was  heard  below 
upon  the  bill,  answer  and  proofs,  tilctl  b}-  both  parties,  and  it 
was  ordered  that  the  sequestration,  which  had  theretofore  is- 
sued, sliould  be  dissolved,  from  which  order,  the  plaintiff  ap- 
pealed to  this  Court. 

The  facts  of  the  case,  upon  which  the  decision  is  mainly 
founded,  are  suffibiently  stated  in  the  opinion  of  the  Court. 

Zeitch,  for  the  plaintiff. 

FowIg^  and  C.  O.  Wriyht,  for  the  defendant. 

Manly,  J.  Any  doubt  as  to  the  merits  of  this  case,  as  it 
was  presented  by  the  bill  and  answer  alone,  has  been  entire- 
ly dissipated  by  the  proofs  subsequently  taken.  The  case  is 
a  strong  one,  for  tlte  interposition  of  a  court  of  equity  to  pro- 
tect the  minor,  who  is  entitled  in  j-emainder. 

It  seems  that  complaiYiant  is  a  son  by  a  former  liusband  of 
Mary  Bradle}^,  wife  of  the  defendant ;  tluit  defendant  has 
separated  himself  from  his  wife,  and  has  another  woman  liv- 
ing with  him  ;  that  he  has  sold  all  tlie  property,  acquired  by 
his  marriage,  except  the  slaves  in  question,  and  has  no  pro- 
perty besides  ;  that  he  consulted  with  II.  H.  Kobinson  some- 
time before  the  suit,  wlietlier  he  (defendant)  would  incur  any 
criminal  responsibility,  if  lie  sohl  them,  and  that  he  has  inti- 
mated since  the  suit  was  instituted  against  him,  in  indirect, 
but  iutelligible  terms,  that  if  he  could  again  get  possession  of 


IN  THE  SUPREME  COURT. 


Elliott  V.  Pool. 


them,  he  would  put  them  beyond  the  reach  of  the  claimant. 

These  leading  facts,  now  developed  in  the  case,  convince 
us,  that  the  danger  to  the  property,  in  the  Imnds  of  the  de- 
fendant, would  be  imminent,  and  that  it  is  highly  expedient 
and  necessary,  the  person  in  remainder  should  be  protected 
by  the  writs  heretofore  granted  in  the  cause. 

The  testimony  from  one  witness  (Robinson)  is,  alone,  con- 
clusive of  the  case.  From  his  testimony,  it  appears  the  de- 
fendant deliberately  meditated  a  conversion  of  the  slaves  out 
and  out,  to  his  own  use,  and  was  making  the  plan  turn  in  his 
mind,  upon  the  point,  whether  it  involved  any  criminal  re- 
sponsibility. A  person  who  could  entertain  such  thoughts^ 
requires,  in  the  opinion  of  this  Court,  other  restraints  than, 
those  of  a  moral  nature. 

This  is  especially  so,  when  such  person  is  found  under  de- 
moralizing and  necessitous  circumstances. 

Therefore,  the  decree  of  the  Court  below,  dissolving  the 
sequestration  in  the  cause,  should  be  reversed,  and  a  decree, 
in  conformity  with  this  opinion,  to  continue  the  sequestration. 

Pee  Cukiam.  Decree  accordingly. 


AARON  ELLIOTT  AND  OTHERS  against  JOSEPH  H..  POOL  AND 
ANOTHER. 

Where  ihe  trustee  ol  an  insolvent  debtor,  under  a  deed  of  trust  which  left 
out  certain  creditors,  bought  property  at  his  own  trust  sale  at  less  than  its 
vulue,  but  without  any  actual  fraud,  in  a  suit  by  the  unsecured  creditors  to 
compel  a  resale  of  the  property  for  their  benefit,  it  was  held  that  such  trus- 
tee was  entitled  to  have  honafide  debts  due  him  from  the  trustor  satisfied 
out  of  the  increased  price  obtained  by  a  resale  of  the  property  before  the 
unsecured  creditors  could  come  in. 

This  was  a  petition  to  rehear  a  decree  of  the  Court  passed 
at  the  December  Term,  1856.    The  facts  upon  which  that  de- 


DECEMBER  TERM,  I860;  4a 


Elliott  V.  Pool. 


cree  was  based,  are  set  out  in  3d  vol.  Jones'  Eq.  17,  and  they,, 
with  the  further  facts  upon  which  the  decision  at  this  term  is 
founded,  are  suflSciently  set  forth  in  the  following  opinion  of 
the  Court. 

B.  F.  Moore ^  for  the  plaintiff. 
Foiole.  for  the  defendant. 

Battle,  J.  When  this  cause  was  heard,  and  an  account 
ordered  at  December  Term,  185G,  the  question  presented  in 
the  petition  to  rehear,  was  either  not  argued  by  the  counsel, 
or  if  argued,  was  overlooked  by  the  Court.  It  certainly  was 
not  decided,  as  appears  from  the  opinion  on  file,  and.  reported 
in  3d  Jones'  Eq.  17.  It  is,  therefore,  a  proper  subject  for  con- 
sideration upon  the  petition  to  rehear  the  former  decree.  The 
question  thus  presented,  is  an  important  and  interesting  one, 
and  we  are  gratified  that,  in  the  investigation  of  the  princi- 
ples upon  which  it  is  to  be  decided,  we  have  been  materially 
aided  by  the  able  arguments  which  have  been  submitted  to  us 
by  the  counsel  on  both  sides.  In  proceeding  to  state  the  pro- 
cess of  reasoning  by  which  we  have  been  led  to  the  conclusion 
to  which  we  have  come,  it  will  aid  us  to  advert  to  the  facts  upon 
which  the  question  is  raised.  They  ai-e  briefly  as  follows: 
One  Jesse  L.  Pool,  being  greatly  in  debt,. and,  as  it  afterwards 
appeared,  insolvent,  on  30th  day  of  January,  1841,  executed 
a  deed  in  trust  to  the  defendant,  Joseph  II.  Pool,  conveying 
to  him  a  large  real  and  personal  estate,  consisting  of  land, 
slaves  and  other  personal  property,  being  in  fact  all  he 
owned,  in  trust  that  he  should,  when  he  might  deem  proper, 
advertise  and  sell  the  same,  either  for  cash  or  upon  a  credit, 
and  apply  the  proceeds  to  the  payment,  in  the  first  place,  of 
certain  debts  recited  in  the  deed,  due  and  owing  to  the  said 
trustee,  or  for  which  he  was  surety,  and  in  the  second  place,  to 
the  payment  of  a  debt  due  to  one  John  Pool,  and  then,  should 
tliere  be  a  residue  of  property,  after  discharging  these  liabili- 
ties, it  was  to  be  conveyed  by  the  trustee  to  the  grantor,  Jes- 
se L.  Pool.    In  the  year  following,  Jesse  L.  Pool  died,  and 


M  IN  THE  SUPREME  COURT. 


Elliott  V.  Pool. 


shortly  thereafter,  to  Mdt,  on  the  1st  and  3d  days  of  Decem- 
ber, 1842,  the  defendant,  Joseph  H.  Pool,  after  due  advertise- 
ment, sold  all  the  property  conveyed  to  him  in  the  deed  of 
trust,  and,  by  his  agent,  became  the  purchaser  of  a  valuable 
tract  of  land,  and  several  of  the  slaves.  The  whole  amount 
of  sales  was  sufficient  to  pay  and  discharge  all  the  debts  men- 
tioned in  the  first  ckss,  and  a  part  of  tlie  debt  due  to  John 
Pool,  leaving  a  part  of  that  debt  unpaid.  This  appears  from 
exhibits  filed  with  the  answer  of  Joseph  II.  Pool,  which  con- 
tain statements  of  the  accounts  of  tlie  sale,  and  the  amounts 
of  the  several  debts  secured  by  the  deed  of  trust.  The  de- 
fendant, Joseph  II.  Pool,  being  afterwards  advised  that  he 
could  not,  legally,  become  a  purchaser  at  his  own  sale,  and 
that  the  heirs-at-law  and  personal  representative  of  Jesse  L. 
Pool  could,  at  their  discretion,  have  his  purchases  declared 
void,  and  call  for  a  reconveyance,  or  a  resale  of  the  property, 
procured  a  friend  to  take  out  letters  of  administration  on  the 
estate  of  the  said  Jesse  L.  Pool,  and  then  filed  a  bill  in  the 
court  of  ecj^uity  against  the  heirs  and  administrator  of  the  de- 
ceased, calling  upon  them  to  elect  either  to  repay  him  the 
amount  of  his  bids,  and  take  a  reconveyance  of  tlie  property, 
or  to  permit  him  to  have  his  purchases  confirmed  by  a  decree 
of  the  court.  On  this  bill  such  proceedings  were  had,  that  a 
decree  was  made,  confirming  the  purchases  made  by  the  trus- 
tee, and  perpetually  enjoining  the  heirs  and  administrator  of 
the  grantor  in  trust,  respectively,  from  setting  up  a  title  to  the 
property.  Tlie  present  bill  was  filed  by  the  plaintiffs,  as  cred- 
itors of  Jesse  L.  Pool,  not  secured  by  the  deed  in  trust,  charg- 
ing fraud  on  the  defendant,  Josepli  11.  Pool,  and  seeking  to 
hold  him  accountable  for  the  full  value  of  the  land  and  slaves, 
whicli  he  purchased  at  his  own  trust  sale,  and  wliich  value 
was  alleged  to  be  much  greater  than  that  at  which  the  proper- 
ty was  purchased.  After  an  answer  was  filed  to  tlie  original 
bill  in  1848,  the  defendant,  Joseph  II.  Pool,  instituted  suits  at 
law  against  the  administrator  of  Jesse  L.  Pool  for  certain 
debts  which  he  alleged  to  be  due  him,  and  which  were  notin- 
^cluded  in  the  deed  in  trust     In  these  suits,  the  defendant 


fDEGEMBER  TERM,  1860.  4^ 

Elliott  V.  Pool. 

pleaded  a  want  of  assets,  whieli  was  admitted  by  the  plaintiff, 
and  judgments  quando  were  taken  for  the  amounts  claimed. 
After  this,  the  defendant  obtained  leave  to  file  a  supplemen- 
tal answer,  in  wliich  he  claimed  tliat  if  he  should  be  held  to 
be  accountable  to  the  plaintiffs  for  the  increased  value  of  the 
land  and  slaves,  purchased  by  him,  as  has  been  before  men- 
tioned, lie  should  be  allowed,  as  credits,  the  amount  of  the 
debts  due  him  from  Jesse  L.  Pool,  and  for  which  he  had  ob- 
tained the  judgments  above  referred  to.  The  right  of  the 
plaintiffs  to  the  account  was  establisli«d  by  the  decree  made 
at  the  hearing  of  the  cau&e,  and  the  question,  whether  the  de- 
fendant, Joseph  II,  Pool,  is  entitled  to  the  credits  which  he 
claims,  either  upon  the  ground  of  retainer,  or  as  an  equitable 
set-off,  is  the  one  now  presented  to  us  upon  the  petition  to  re- 
hear. 

The  doctrine  of  equitable  set-off,  was  established  as  one  of 
the  principles  of  the  court  of  chancery  prior  to  the  enact- 
ment of  any  statute  authorising  sets-off  in  a  court  of  law. — 
Judge  Story,  in  delivering  an  opinion  in  the  case  of  Greene 
v.  Darling^  5  Mason's  Pep.  201,  in  the  circuit  court  of  the 
United  States,  held  in  Phode  Island,  made  an  elaborate  re- 
view of  all  the  English  cases  on  the  subject,  from  which  he 
drew  the  conclusion  "  that  courts  of  equity  will  set  off  distinct 
debts  where  there  has  been  a  mutual  credit  y  upon  the  prin- 
ciples of  natural  justice,  to  avoid  circuity  of  suits,  following 
the  doctrine  of  compensation  of  the  civil  law  to  a  limited  ex- 
tent. That  law  went  further  than  ours,  deeming  the  debts, 
8110  jure,  set  off  or  extinguished  ^:>rc>  tanto  j  whereas,  our  law 
gives  the  party  an  election  to-  set-off,  if  he  chooses  to  exercise 
it ;  but  if  he  does  not,  the  debt  is  left  in  full  force,  to  be  re- 
covered in  an  ordinary  suit."  The  learned  Judge  then  pro- 
ceeds to  say  "since  the  statute  of  the  set-off  of  mutual  debts 
and  credits,  courts  of  equity  have  generally  followed  the  course 
adopted  in  the  construction  of  the  statutes  by  courts  of  law, 
and  have  applied  the  doctrine  to  equitable  debts ;  they  have 
rarely,  if  ever,  broken  in  upon  the  decisions  at  law,  unless  some 
other  equity  intervened  which  justified  them  in  granting  relief 


IN  THE  SUPEEME  COURT. 


Elliott  V.  Pool. 


beyond  the  rules  of  law,  such  as  has  been  already  alluded  to. 
The  American  courts  have  generally  adopted  the  same  prin- 
ciples as  far  as  the  statutes  of  set-off  of  the  respective  States 
have  enabled  them  to  act."  In  North  Carolina  we  have  had 
a  statute  of  set-oflt"  ever  since  the  year  1756,  (see  Rev.  Code  of 
1820,  ch.  57,  sec.  7 ;  Rev.  Stat.  ch.  31,  sec.  80,)  which  is  em- 
bodied in  the  Revised  Code,  ch.  31,  sec.  77,  as  follows :  "  In 
cases  where  there  shall  be  mutual  debts  subsisting  between  the 
plaintiff  and  defendant ;  or  where  either  part}'^  may  sue  or  be 
sued  as  executor  or  administrator,  and  there  are  mutual  debts, 
subsisting  between  the  testator  or  intestate  and  either  party, 
one  debt  may  be  set  against  the  other,  either  by  being  plead- 
ed in  bar,  or  given  in  evidence  on  the  general  issue,  on  notice 
given  of  the  particular  sum  intended  to  be  set-off;  and  on 
what  account  tlie  same  is  due,  notwithstanding  such  debts  shall 
be  of  a  different  nature ;  but  if  either  debt  arose  by  reason  of 
a  penalt}^,  the  sum  intended  to  be  set-off,  shall  be  pleaded  in 
bar,  setting  forth  what  is  justly  due  on  either  side."  It  is 
manifest  from  the  enactment  that  we  allow  sets-off  to  be  made 
at  law,  where  the  debts  are  mutual,  without  regard  to  the  en- 
quiry whether  they  be  founded  on  mutual  credit,  that  is,  one 
contracted  on  the  faith  and  credit  of  the  other,  and  our  court 
of  equity  will  be  found  to  have  acted  on  the  same  principle 
with  regard  to  equitable  sets-off.  See  Iredell  v.  Zangston,  1 
Dev.  Eq.  392 ;  Sellars  v.  Bryan^  2  Dev.  Eq.  352 ;  Bunting  v. 
Eiclcs,  2  Dev.  and  Bat.  Eq.  130. 

In  the  case  before  us,  it  is  contended  b}'  the  counsel  for  the 
defendant,  Joseph  H.  Pool,  that  by  the  application  of  this 
principle,  he  had  a  right  to  set-off  the  debts  due  him  from  the 
estate  of  Jesse  L.  Pool,  against  the  claim  preferred  against 
him  by  the  plaintiffs.  The  counsel  insists  that  lie  would  have 
had  a  right  to  do  so  as  against  Jesse  L.  Pool  himself,  or  against 
his  heirs  and  personal  representative,  and,  consequently, 
against  the  plaintiffs  who,  according  to  the  opinion  heretofore 
filed  in  the  case,  have  "  to  work  out  their  equity  "  through  the 
representatives  of  the  deceased  debtor.  The  counsel  for  the 
plaintiffs  argues  in  opposition  to  this  alleged  right  of  set-off, 


DECEMBER  TERM,  1860.  M 

Elliott  V.  Pool. 

contending  that  Joseph  H.  Pool  was  bound  as  trustee,  by  the 
express  words  of  the  deed  under  which  he  acted,  to  sell  the 
property  conveyed  to  him,  and  after  satisfying  the  debts  se- 
cured by  the  deed,  to  reconvey  tlie  residue  to  the  grantor  in 
trust ;  that  his  purchase  at  his  own  sale  did  not  divest  the 
property,  so  purchased,  out  of  his  hands  as  trustee,  and  that 
consequently'^,  he  is  still  bound  to  convey  or  account  for  it  or 
its  value,  to  the  plaintifls  who  stand  in  the  place  of  the  repre- 
sentatives of  the  deceased  debtor.  It  would  be  difhcult  to 
answer  this  argument,  or  to  impair  its  strength,  if  the  sale  of 
all  the  property  conveyed  in  the  deed  of  trust  had  been  unne- 
cessary, or  if  the  sale  had  been  conducted  in  an  illegal  man- 
ner, BO  as  to  have  infected  the  defendant,  Joseph  II.  Pool's 
purchases  with  actual  fraud;  butsucli  does  not  appear,  upon 
the  proofs,  to  have  been  the  case.  It  seems  from  the  account 
of  the  sales,  and  the  statement  of  tlie  amount  of  the  debts  se- 
cured by  the  deed  in  trust,  which  are  filed  as  exhibits,  that  a 
sale  of  all  the  property  was  necessary,  and  the  proofs  do  not 
satisfy  us  that  there  was  any  actual  fraud  in  the  manner  in 
which  it  was  conducted.  The  decree  heretofore  filed  in  the 
cause,  does  not  put  this  defendant's  liability  to  the  plaintifi^s, 
on  that  ground,  but  upon  the  broad  ground  of  policy,  which 
forbids  a  trustee  to  purchase  at  his  own  sale.  That  policy  has 
established  "  the  rule  that,  however  fair  the  transaction,  the 
cestui  que  trust  is  at  liberty  to  set  aside  the  sale  and  take  back 
the  property.  If  a  trustee  were  permitted  to  buy  in  an  hori' 
est  case,  he  might  bu}^  in  a  case  having  that  aj)j)ea)'ance,  hut 
which,  from  the  infirmity  of  human  testimony,  tniyht  he  gross- 
ly otherwise?''  Such  is  clearly  the  rule  in  the  English  courts 
of  equity,  and  the  reason  upon  wliich  it  is  founded  ;  and  we 
believe  it  will  be  found  that  our  courts  of  equity  have  adopt- 
ed the  same  rule,  and  for  the  same  reason.  See  Lewin  on 
Trusts,  87  Law  Lib.  39i  (m.  p.  460.)  According  to  this  rule, 
then,  the  purchase  by  a  trustee,  at  his  own  sale,  is  not  abso- 
lutely void,  but  only  voidable  at  the  election  of  the  cestui  qiie 
trust.  The  latter  may,  if  he  think  that  it  is  his  interest  to  do 
60,  let  the  purchase  stand  and  compel  the  trustee  to  pay  the 


48  IN  THE  SUPREME  COUET. 

Elliott  V.  Pool. 

price,  or  he  may  have  the  sale  set  aside,  and  the  property  re- 
sold. The  rule  is  manifestly  well  adapted  to  accomplish  the 
purpose  which  it  has  in  view ;  which  is  to  prohibit  trustees 
from  attempting  to  make  a  profit  out  of  the  property  which 
they  are  entrusted  to  sell,  for  if  they,  by  purchasing  it,  make 
a  bad  bargain,  they  may  be  held  to  it,  but  if  a  good  one,  it 
ma}'^  be  taken  from  them.  There  cannot  be  a  doubt,  then, 
that  if,  in  the  present  case,  Jesse  L.  Pool,  the  grantor  in  the 
deed  of  trust,  were  alive,  he  could,  in  a  court  of  equity,  have 
the  purchases  of  the  land  and  slaves,  made  by  the  trustee,  set 
aside  and  the  property  resold,  and  hold  the  trustee  responsi- 
ble for  the  price  obtained  upon  such  resale.  But  could  he  re- 
cover from  him  the  amount  of  the  advanced  price  without  be- 
ing liable  to  have  any  honafide  debt  which  he  owed  the  trus- 
tee set-off  against  his  demand  ?  "We  think  not.  The  claim  of 
each  against  the  other,  would  be  mutual,  and  in  equity  the  real 
debt  due  from  one  to  the  other  would  be  the  excess  of  one  of 
the  claims  over  the  other.  'When  the  cestui  que  trust  came  to 
seek  the  enforcement  of  an  equity  by  the  court,  he  would  be^ 
met  by  the  maxim  "  that  he  who  seeks  equity  must  do  equi- 
ty." The  original  considerations  upon  which  these  debts  are 
founded,  are  not  set  forth  in  the  supplemental  answer,  but 
from  the  transcripts  of  the  record  of  the  judgments  obtained 
thereon,  it  would  seem  that  they  were  moneys  paid  by  the 
trustee  as  surety  for  his  cestui  que  trusty  and  if  so,  it  would  be 
a  hard  rule  which  would  enable  the  cestui  que  trust  to  recov- 
er the  full  value  of  the  property  purchased  by  the  trustee  at 
his  own  sale,  without  repaying  to  him  money  which  he  had 
been  compelled  to  pay  as  the  surety  of  his  cestui  que  trust. — 
In  the  case  of  Iredell  v.  Langston,  above  referred  to,  Hen- 
DEKSON,  Chief  Justice,  said  "  I  doubt  whether  a  creditor  can 
call  the  funds  out  of  the  hands  of  the  trustee  without  paying 
all  the  debts  of  the  cestui  que  trust  to  the  trustee."  He  was 
not  speaking,  of  course,  of  a  creditor  whose  debt  was  secured 
by  a  deed  in  trust ;  and  if  there  be  a  doubt  whether  any  oth- 
er creditor  could  call  the  funds  out  of  the  hands  of  the  trus- 


DECEMBER  TERM,  1860.  4^ 


Brown  v.  Haynes. 


tee,  without  paying  the  debts  of  the  cestui  que  trust  to  hiiri^ 
surely  the  cestui  que  trust  himself  could  not. 

If  the  proposition  then  be  established  that  the  defendant, 
Joseph  11.  Pool,  would  have  had  a  right  to  set-off  his  debts 
against  the  demand  of  Jesse  L.  Pool  himself,  we  think  it  plain, 
tiiat  the  court  of  equity,  acting  in  analogy  to  the  express 
words  of  the  statute,  as  to  a  set-otfat  law,  must  have  allowed 
the  defendant's  debts  to  have  been  set-off  against  the  demand 
of  the  cestui  que  trust  in  a  suit  by  his  representatives.  It  has 
<ilready  been  shown  that  the  plaintiffs  stand  in  the  place  of 
these  representatives,  and,  of  course,  have  no  greater  equity 
than  they  would  have.  The  defendant,  cannot,  however,, 
have  the  same  right  of  set-off  in  his  representative  capacity, 
as  executor  or  administrator  of  some  other  person.  This  is 
settled  by  the  case  of  Sellars  v.  Bryan,  2  Dev.  Eq.  358,  upon 
the  ground  of  a  want  of  mutuality  in  the  debts. 

It  will  be  ordered,  then,  that  the  defendant,  Joseph  11. 
Pool,  shall  be  allowed  a  credit  for  all  hmajide  debts  due  to 
him  in  his  own  right,  which  he  can  prove  against  the  estate 
of  Jesse  L.  Pool.  In  making  this  proof,  the  judgments  which 
he  may  have  obtained  against  the  administrator  of  the  said 
Jesse  L.  Pool,  shall  not  be  evidence  for  him,  because  the  ad- 
ministrator was  not  interested  in  contesting  the  existence  or 
legality  of  the  alleged  debts,  and  the  plaintiffs,  as  creditors,, 
were  not  parties  to  the  suits. 

Per  Curiam,  Decree  accordingly.. 


LETITIA  BROWN,  AdrrCx  of  M.  L.  BROWN,  dec'd  against  THOMAS  W. 

HAYNES. 

Where  a  partner,  -whoso  duty  it  is  to  keep  the  books,  seeks  tomake  a  charge 
in  his  own  favor,  which  ia  not  supported  by  a  proper  entry  in  the  books,  he 
must  account  for  that  fact,  and  can  only  support  the  charge  by  clear  proof- 
every  presumption  being  against  him. 

4 


50  IK  THE  SUPREME  COURT. 

Brown  v.  Haynes. 

Where  one  entered  into  a  copartnership  with  his  son-in-law,  and  it  was  agreed 
that  the  father-in-law  should  furnish  a  house  for  a  shop,  tools,  &c.,  and  a 
house  for  the  defendant  to  live  in,  and  that  he  "should  be  at  no  expense," 
it  was  held  that  these  words  must  be  intended  to  mean  expense  for  things 
connected  with  the  business,  and  not  family  expenses. 

One  partner  cannot,  without  the  express  concurrence  of  his  copartner,  make 
a  note  of  the  firm  payable  to  himselt  and  charge  the  firm  therewith. 

Where  A,  who  was  the  active  partner,  and  the  book-keeper  of  a  firm,  sought 
to  charge  it  with  the  value  of  a  slave  which  it  was  alleged  belonged  to  the 
firm,  and  had  been  appropriated  by  B,  his  copartner,  to  his  individual  use, 
it  was  held  that  in  the  absence  of  any  charge  upon  the  books  of  the  firm,^ 
the  mere  allegation  of  it  in  his  answer,  supported  by  vague  and  improbable 
testimony  that  such  slave  belonged  to  the  firm,  was  not  sufficient. 

Where  A,  who  was  the  active  partner  ot  a  firm,  and  its  book-keeper,  set  up 
a  claim  against  the  firm  for  money  which  the  answer  alleged  was  due  the 
partners  jointly,  for  services  rendered  independently  of  the  copartnership, 
but  which  were  appropriated  by  B  to  his  own  use  exclusively,  it  was  held 
that  this  could  not  be  made  a  charge  upon  the  firm  in  the  absence  of  proof 
that  the  money  had  been  appropriated  to  the  purposes  of  the  firm, 
there  being  no  entry  on  the  books  to  show  the  fact. 

The  office  of  an  exception  is  to  call  the  attention  of  the  court  to  some  speci- 
fic matter  or  item  in  an  account  in  respect  to  which  error  is  alledged, 
if  it  does  not  answer  this  purpose,  the  court  will  not  notice  it. 

Cause  removed  from  the  Court  of  Equity  of  Rowan  county, 
and  brought  up  upon  exceptions  to  the  report  of  the  master. 

The  bill  is  filed  against  the  defendant  as  surviving  partner 
of  the  firm  of  Brown  &  Playnes,  and  prays  for  an  account 
and  settlement  of  the  firm  business,  and  the  plaintiff  is  the 
administratrix  of  M.  L.  Brown,  the  deceased  partner. 

About  the  year  1851,  the  defendant  and  plaintiff's  intestate 
entered  into  a  copartnersliip  for  the  purpose  of  carrying  on,  in 
the  town  of  Salisbury,  the  business  of  tanning,  shoe-making 
and  harness-making.  There  were  no  written  terms  of  copart- 
nership, but  the  defendant  in  his  answer  avers  that  by  the 
terms  of  the  parol  agreement  "  the  capital  was  furnished  by 
the  plaintiff's  intestate  without  interest,  and  the  tan-yard  and 
a  house  for  the  defendant  to  live  in,  were  to  be  furnished  with- 
out rent,  and  also,  the  shoe-shop  without  rent ;  and  his  mules 
to  grind  the  bark,  and  old  Jesse,  the  tanner,  without  charge." 


DECEMBER  TEKM,  1860,  61 

Brown  v.  Haynes. 

"  And  in  consideration  of  this  capital,  &c.,  the  defendant  was 
to  give  Ills  personal  attention  to  the  business  of  the  copartner- 
ship, and  they  were  to  share  equally  in  the  profits  and  losses 
of  the  said  firm."  The  partnership  continued  up  to  the  year 
1857,  when  Brown  died. 

In  his  answer,  the  defendant  seeks  to  have  an  allowance  for 
four  notes ;  one  for  $960.79,  dated  Feb.  15,  1855,  which  he 
avers  "  was  given  on  the  settlement  of  the  estates  of  Henry 
W.  Brown  and  Michael  Brown,  one  half  of  this  sum  belong- 
ed to  this  defendant,  and  tlie  other  half  to  plaintiff's  intes- 
tate "  another  for  $525,  dated  August  tlie  8th,  1853 ;  "  this 
was  given  for  a  negro  boy.  Burton,  the  property  of  the  firm, 
taken  by  the  intestate";  another  for  $600,  dated  Nov.  2d, 
1854,  "  for  money  of  the  firm  received  by  plaintiflF's  intes- 
tate"; and  one  other  for  $1152,  dated  May  6th,  1853,  "given 
for  money  of  the  firm  received  by  plaintifi"'s  intestate." 

These  notes,  amounting  in  the  aggregate  to  the  sum  of 
$434'1.16,  were  all  in  the  hand-writing  of  the  defendant,  both 
tlie  bodies  and  the  signatures,  ilie  name  of  the  firm  having 
been  signed  to  them  by  defendant,  who,  it  is  admitted,  was 
the  active  partner;  and  kept  the  books,  made  the  entries,  hir- 
ed the  hands,  and  paid  them  ;  and,  in  fact,  was  the  general 
manager  of  the  business. 

Defendant  introduced  in  evidence  the  deposition  of  one  "VV. 
ri.  ria3nics,  his  father,  who  deposed,  that  in  a  conversation 
had  with  plaiutift''s  intestate,  a  short  time  after  the  firm  was 
organized,  that  intestate  said  to  him  tliat  he  "  was  to  furnish 
every  thing,"  and  "  that  T.  W.  IIa3'nes  was  to  be  at  no  ex- 
pense." Tlie  witness,  Ilaynes,  further  deposed  that  plaintifl:"'s 
intestate  told  him  that  he  had  administered  on  the  estate  of 
Henry  Brown,  and  that  T.  W,  Haynes  had  administered  on  the 
estate  of  Michael  Brown  ;  that  Haynes  was  to  attend  to  the 
business  of  both  estates,  and  that  the  commissions  were  to  be 
equally  divided  ;  that  Brown  afterwards  told  him  that  the  es- 
tates were  settled  ;  that  the  commissions  on  both  amounted  to 
between  $900  and  $1000 ;  that  he  had  used  tlie  entire  sura 
himself,  but  that  he  was  responsible  to  T.  W.  Hajnes  for  one 


52  IN  THE  SUPKEME  COUKT. 

Brown  v.  Haynes. 

half  of  it.  He  farther  deposed  that  he  sold  a  boy,  Bnrton, 
to  the  firm,  and  that  he  was  paid  for  out  of  the  firm  funds : 
that  plaintiff's  intestate  afterwards  took  this  boj  to  his  planta- 
tion, and  told  him,  witness,  that  he  was  to  account  for  him  to 
the  firm  ;  witness  did  not  recollect  how  mnch  he  received  for 
Burton ;  that  he  sold  the  fifm  another  boy  at  the  same  time, 
and  thought  he  got  between  $700  and  $800  for  both. 

The  defendant,  who  was  a  son-in-law  of  plaintiif 's  intestate, 
as  was  shown,  was  a  man  of  slender  means,  and  had  been  for 
several  years  previous  to  the  organizing  of  the  copartnership, 
engaged  in  clerking,  and  Michael  Brown,  his  employer,  de- 
posed that  when  he  left  him,  he  was  indebted  to  him,  (Brown,) 
to  the  amount  of  $70,  which  was  paid  by  his  fathei-,  W.  H. 
Haynes.  The  father  of  the  defendant  also  stated  upon  liis  cross- 
examination,  that  during  the  continuance  of  the  copartnership, 
he  had  let  his  son  have  money  at  difi'erent  times ;  that  the 
largest  sura  he  recollected  letting  him  have,  was  $-100 ;  and 
that  of  this  money  so  supplied,  $400  was  borrowed  by  the 
firm  to  purchase  hides  with,  half  of  which  had  been  paid  back 
by  the  firm,  the  rest  was  a  gift  to  his  son. 

This  witness  lived,  during  the  existence  of  the  firm,  in  the 
county  of  Iredell,  some  twenty  miles  from  Salisbury. 

The  answer  also  avers  that  there  was  a  note  on  Moses  Ry- 
mer  and  Frederic  Mowery,  payable  to  M.  Brown  for  the  sura 
of  $600 ;  that  this  note,  though  made  payable  to  Brown,  was 
the  property  of  the  firm,  and  was  taken  for  firm  debts,  and 
the  defendant  seeks  to  have  it  accounted  for  as  such  in  the  set- 
tlement. 

There  was  no  further  evidence  of  these  various  transactions, 
and  no  entries  on  the  books  of  the  firm  in  relation  thereto, 
nor  was  any  mention  made  therein  of  any  such  matters. 

Upon  the  coming  in  of  the  master's  report,  defendant  filed 
the  following  exceptions : 

1.  Defendant  excepts  to  the  whole  report,  for  the  reason 
that  the  testimony  does  not  sustain  the  report. 

2.  Defendant  excepts  to  the  report  for  the  reason  that  the 
commissioner  has  charged  for  Jesse's  services  at  one  hundred 


DECEMBER  TERM,  1860.  53 


Brown  v.  Haynes. 


and  fifty  dollars  per  annum  for  five  years,  making  $750  when 
the  witness,  W.  H.  Haynes,  proved  that  there  was  to' be  no 
charge  for  Jesse. 

S^Defendant  excepts  to  the  report  for  the  reason  that  W 
H.  Haynes  proved  that  T.  W.  Haynes  was  to  be  at  no  ex- 
pense, but  that  the  family  expenses  were  to  be  borne  by 
^rown,  but  that  the  master  had  allowed  only  the  rent  of  the 
dwelling  house  and  other  buildings  connected  with  the  busi- 
ness and  for  the  services  of  two  negro  women,  whereas  he 
should  have  allowed  for  tlie  whole  expense  of  the  family 

4.  Defendant  excepts  to  the  repoi-t  for  the  reason  that  the 
commissioner  refused  to  allow  as  a  charge  against  the  firm  in 
tavor  ot  defendant  four  notes  amounting  to  the  sum  of  $4,344.46. 

5.  Delendant  excepts  because  commissioner  refused  to 
charge  the  i,laintifr  with  the  value  of  the  negro  boy.  Burton 

6.  Detendant  further  excepts  because  the  commissioner  fail- 
ed to  allow  his  one  half  of  the  commissions  received  upon  the 
estates  of  Henry  and  Michael  Brown. 

7.  Defendant  excepts  because  the  commissioner  refused  to 
allow  for  any  money  advanced  to  the  firm,  when  he  should 
iiave  allowed  at  least,  the  sum  of  $500  ;  that  W.  H.  Haynes 
proved  two  hundred  dollars  advanced  by  him  and  applied  in 
the  purchase  of  hides. 

8.  Defendant  excepts  to  the  report  of  the  commissioner  for 
the  reason  that  he  has  not  allowed  the  note  of  Rymer  &  Mow- 
ery,  principals,  and  B.  B.  Roberts,  S.  R.  Harrison  and  J  J 
fenmmerell,  sureties,  for  $600,  with  a  credit  of  $75,  which 
note  though  payable  to  M.  L.  Brown,  individually,  was  indi- 
rectly firm  property,  and  placed  by  this  defendant,  as  firm 
property  in  the  hands  of  L.  Blackmer,  and  for  which  this  de- 
fendant holds  his  receipt. 

Upon  the  coming  in  of  the  report,  and  the  filing  of  the  ex- 
ceptions, the  cause  was  set  down  for  argument,  and  transmit- 
ted by  consent  to  this  Court. 

FUniing  and  James  K  Kerr,  for  the  plaintifi' 
Boyde7i  and  B.  li.  Moore,  for  the  defendant. 


54  IN  THE  SUPREME  COURT. 

Brown  v.  Hajnes. 

Pearson,  C.  J.  Before  entering  upon  tlie  exceptions,  two 
general  remarks  will  serve  to  give  "  color  and  complexion" 
to  this  whole  case.  "  Defendant  admits  that  he  was  the  ac- 
tive partner,  kept  the  hooks,  made  all  the  entries,  and  received 
and  disbursed  the  funds,  hired  hands  and  paid  them,  and  did 
all  the  other  business  of  the  firm." 

It  follows  that  if  the  proper  entries  are  not  made,  so  as  to 
show,  on  the  hooks,  the  condition  of  the  business,  it  was  the 
fault  of  the  defendant,  and  he  will  not  be  allowed  to  take  ad- 
vantage of  his  own  wrong.  The  defendant  makes  a  charge 
against  the  firm,  amounting  to  more  than  four  thor/sand  dol- 
lars ;  it  is  not  supported  by  any  entry  on  the  books,  and  in- 
stead thereof,  the  defendant  relies  "  on  four  notes"  purport- 
ing to  have  been  executed  by  the  firm  to  himself,  with  diifer- 
ent  dates,  and  for  the  several  sums,  amounting  in  all,  to  the 
sum  total  claimed,  and  professes  in  his  answer  to  give  the 
transactions  constituting  the  consideration.  These  notes  are 
in  his  hand-writing,  and  the  name  of  the  firm  signed  by  liim. 
There  is  no  proof  that  they  were  ever  exhibited  to  the  deceas- 
ed partner,  or  were  ever  seen  by  any  one  in  his  life-time. — 
These  circumstances  detract  much  from  the  credit  which  might, 
otherwise,  be  due  to  the  answer,  and  reflect  unfavorably  up- 
on the  testimony  of  the  defendant's  father,  which  is  relied  on 
in  support  of  several  of  his  charges. 

1.  The  first  exception  is  overruled  because  of  its  generality. 
The  object  of  an  exception  is  to  call  the  attention  of  the  court 
to  some  specific  matter  or  item  in  the  account,  in  respect  to 
which  error  is  alledged.  If  an  exception  does  not  answer  this 
purpose,  the  court  will  not  notice  it. 

2.  The  second  exception  is  overruled,  l^either  W.  TL 
Haynes,  nor  anj^  other  witness,  proves  that  no  charge  was  to 
be  made  for  the  hire  of  Jess,  and  the  allegation  of  the  answer 
is  not  only  unsupported,  but  is  opposed  by  the  weight  of  the 
evidence.  The  tan-yard  tools  and  fixtui-es,  shoe-shop,  house 
and  lot,  which  it  is  admitted  the  partner,  Brown,  was  to  furnish 
free  of  rent,  in  compensation  for  the  services  of  the  defendant, 
was  worth  an  annual  rent  of  some  five  hundred  dollars.    Two 


DECEMBER  TERM,  1860.  55 

Brown  v..  Haynes. 

Iniudred  and  fifty  dollars  was  a  fair  allowance  for  the  services 
of  the  defendant,  who  was  a  young  man,  and  had  no  experi- 
ence in  the  business,  and  was  to  be  also  allowed  one  half  the 
profits. 

3.  The  third  exception  is  overruled.  The  witness,  W.  H. 
Haynes,  who  is  the  father  of  the  defendant,  deposes  that 
Brown,  whose  daughter  his  son  had  recently  married,  told 
him  that  he  was  to  furnish  every  thing,  and  that  the  defend- 
ant was  to  attend  to  the  business,  and  "  was  to  be  at  no  ex- 
pense." The  proper  construction  of  this  is,  that  Brown  was 
to  furnish  the  tan-yard,  shoe-shop,  houses,  tools  and  stock  on 
Iiand,  that  is,  evei'y  thing  connected  vnth  the  hiisiness.  It 
would  be  a  strained  construction  to  make  the  words  include 
provisions  for  the  use  of  the  defendant  and  his  family,  and 
also  their  clothes  and  furniture,  and  other  necessaries  for  house- 
keeping ! !  Had  this  been  the  understanding,  the  books  would 
have  contained  many  entries  in  respect  to  such  articles,  where- 
as, there  is  no  entry  of  the  kind,  and  the  defendant  does  not, 
in  his  answer,  alledge  that  the  "  victuals  and  clothes"  of  him- 
self and  wife,  were  to  be  furnished  by  Brown.  He  says  that 
Brown  was  to  furnish,  without  charge,  the  tan-yard,  tools,  ifec, 
his  mules  to  grind  the  bark,  and  old  Jesse,  the  tanner,  and  the 
shoe-shop,  dwelling  house  and  lots,  "these  were  all  to  be  fur- 
nished without  charge."  So,  the  i:>robata^  (construed  as  con- 
tended for,)  goes  beyond  the  allegata  ! 

4.  The  fourth  exception  is  overruled.  This  applies  to  the 
four  notes,  amounting  to  $434:4.40,  which  are  referred  to 
above.  The  idea  that  a  partner,  without  the  express  concur- 
rence of  his  copartner,  can  make  a  note  of  the  firm  paj^able 
to  himself,  and  charge  the  firm  with  it,  is  too  monstrous  to  be 
entertained  for  a  moment!  The  only  motive  that  can  prompt 
one  to  manufacture  secret  evidence  of  this  kind,  must  be  that 
he  prefers  to  keep  the  evidence  in  his  pocket,  rather  than  put 
it  on  the  books,  where  it  would  be  subject  to  the  inspection 
of  his  copartner.  In  our  case,  the  proof  is,  that  the  defend- 
ant did  not  have  the  means  to  enable  him  to  advance  such 


56  m  THE  SUPEEME  COUKT. 

Brown  v.  Haynes. 

large  sums  for  the  nse  of  the  firm  ;  indeed,  it  would  seem  that 
he  was  barely  able  to  support  himself  and  his  wife. 

5.  The  fifth  exception  is  overruled.  The  answer  seeks  to 
charge  the  firm  with  a  note  for  $525,  dated  August  the  8th, 
1853,  and  sets  forth  "  this  note  was  given  for  a  negro  boy, 
Burton,  the  property  of  the  firm,  taken  by  tlie  intestate." — 
This  is  one  of  the  four  notes  embraced  in  tlie  fourth  excep- 
tion, and  the  defendant  failing  in  his  attempt  to  have  the  note 
allowed,  seeks  to  set  up  a  charge  against  the  firm  for  the  val- 
ue of  the  slave,  on  the  ground,  that  the  slave  was  purchased 
and  paid  for  by  the  firm,  and  afterwards  appropriated  by  tlie 
intestate  to  his  individual  use.  If  such  was  the  case,  the  in- 
testate ought  to  have  been  required,  when  he  took  the  slave, 
to  give  his  note  to  the  firm,  or  been  charged  with  the  amount 
on  the  books,  and  it  was  a  strange  notion,  on  the  part  of  the 
defendant,  that  he  could  make  it  the  foundation  of  a  note  by 
the  firm  to  himself  for  the  value  of  the  slave.  This  circum- 
stance, together  with  the  absence  of  any  entry  on  the  books, 
in  respect  to  it,  puts  suspicion  on  the  transaction.  It  is  proved 
that  the  slave  went  into  the  possession  of  Brown,  and  was 
claimed  by  him  as  his  individual  property.  For  the  purpose 
of  showing  that  he  was  bought  and  paid  for  by  the  firm,  the 
defendant  relies  on  the  testimony  of  his  father,  who  says  "  I 
sold  the  firm  a  bo}^,  Burton  ;  he  was  paid  for  out  of  the  firm 
funds ;  afterwards,  Mr.  Brown  took  the  boy  to  his  plantation, 
and  told  me  he  was  to  account  for  him  to  the  firm.  I  don't 
recollect  what  I  got  for  Burton,  I  sold  them  another  negro  at 
the  same  time ;  I  think  it  was  between  $700  and  $800  that  I 
got  for  both  bo3's."  ISTo  explanation  is  given  how  this 
witness' happened  to  know  the  fact,  that  the  price  of  this  boy 
was  "  paid  for  out  of  the  firm  funds."  Witness  says,  "  I 
don't  recollect  when  I  sold  him,  nor  do  I  recollect  where  Thos. 
Haynes  lived  at  the  time."  It  may  be  his  son  told  him  so  ; 
it  was  in  character  with  the  fact  that  he  should,  thereupon, 
make  a  note  payable  to  himself,  for  the  full  value  of  the  boy, 
and  put  the  name  of  the  firm  to  it.  But,  however  this  may 
be,  as  it  was  the  business  of  the  defendant  to  keep  the  books, 


DECEMBER  TERM,  1860.  57 


Brown  v.  flaynes. 


and  to  have  charged  Brown  with  the  value  of  the  boy,  if,  in 
truth,  lie  had  been  the  property  of  the  firm;  in  the  absence  of 
any  entry  on  the  books,  we  cannot,  upon  loose  testimony,  like 
this,  declare  that  the  defendant  has  supported  the  charge  ; 
and  strongly  incline  to  the  opinion,  that,  as  it  was  not  a  part 
of  the  business  of  the  firm  to  trade  in  negroes,  as  no  bill  of 
sale  is  produced  by  the  defendant,  who  ought  to  have  taken 
one,  and  no  enti-y  was  made  on  the  books  in  respect  to  it,  con- 
nected with  the  fact  tliat  the  dei'endant  manufactured  the  note 
above  referred  to,  that  the  defendant  bought  the  i)<>y  as  tin; 
agent  of  lirown,  and  nr>t  as  a  member  of  the  Jinn  ;  at  all 
events,  there  is  no  sullicient  pi'oof  that  the  slave  was  ])aid  for 
out  of  the  funds  of  tlie  firm. 

6.  The  sixth  exception  is  overruled.  The  answer  seeks  to 
charge  the  firm  with  a  note  of  $900.79,  dated  the  15th  of  Feb- 
ruary, 1855,  and  sets  forth,  "  This  was  given  on  the  settlement 
of  Ilenrj'^  W.  Brown  and  Michael  S.  Bi-own's  estates,  one  half 
of  this  sum  belonged  to  this  defendant,  and  the  other  half  to 
M.  L.  Brown."  This  is  also  one  of  the  four  notes  embraced 
in  the  fourth  exception,  and  the  defendant  failing  in  his  at- 
tempt to  have  the  note  allowed,  seeks  to  set  up  a  charge 
against  the  firm,  for  the  amount,  on  the  ground  that  the  firm 
had  received  the  commissions  due  on  settlement  of  the  estates 
of  Henry  and  Michael  Brown.  If  sucli  was  the  fact,  ihe 
books  of  the  firm  ought  to  show  it,  but  there  is  no  entry  on 
the  books,  and  no  pi'oof  of  the  allciration,  and  the  firm  does  not 
seem  to  have  been  in  any  way  connected  with  these  two  es- 
tates, except  by  the  strange  notion  of  the  defendant  that  he 
could  make  it  the  foundation  of  a  note  by  the  firm  to  himself, 
as  he  did  in  respect  to  the  slave.  Burton. 

7.  The  seventh  exception  is  overruled.  It  appears  by  the 
proofs  that  the  defendant  had  been  acting  as  a  clerk  in  a  store 
for  a  year  or  two  before  he  married,  and  entered  into  business 
with  his  father-in-law  ;  he  had  no  funds  when  he  left  the  store, 
and  was  actually  in  debt  to  hisemployer  some  seventy  dollars. 
So,  he  was  not  able  to  make  advances  for  the  firm,  and  does 
not  alledge,  in  his  answer,  tliat  he  did  so.     The  evidence  of 


68  m  THE  SUPREME  COURT. 

Brown  v.  Haynes. 

his  father,  on  which  this  exception  is  based,  is  another  instance 
where  the  probata  reaches  beyond  the  allegata.  W.  IT.  Ilajnes 
deposes,  "  I  let  him,  (mv  son,)  have  money  at  different  times; 
the  largest  amount  I  recollect  of  letting  hira  have  at  any  one 
time,  was  $400."  In  answer  to  a  question,  on  cross-examina- 
tion, "  Did  you  make  a  gift  of  the  money  to  your  son  which 
you  say  you  let  him  have,  if  not,  did  you  lend  it  to  your  son 
or  to  the  firm,  and  was  it  ever  paid  back  to  you  "?  The  wit- 
ness says,  "Not  tlie  whole  of  it;  $-100  was  borrowed  by  the 
firm  to  purchase  hides  with,  and  one  half  of  it  has  been  paid 
back  by  the  firm,  the  balance  of  the  mone}^  was  a  gift."  This 
witness  lived  some  twenty  miles  distant,  in  another  county, 
and  had  no  opportunity  of  knowing  the  business  of  the  firm, 
except  what  M'as  communicated  to  him  by  his  son.  So,  the 
most  charitable  construction  of  his  testimon}^  is,  that  his  son 
told  hiin  that  the  money  was  borrowed  by  the  firm.  The 
books  furnish  no  evidence  of  the  fact  that  this  $400  went  to 
tile  use  of  the  firm,  and,  in  the  absence  of  that  proof,  this  evi- 
dence is  not  sufficient  to  support  the  charge  against  the  firm. 

8,  The  eighth  exception  is  overruled.  This  is  another  item 
embraced  by  one  of  those  "  four  unfortunate  notes."  It  is 
enough  to  say  that  the  note  of  Rymer  and  others,  for  $600,  is 
on  its  face,  payable  to  M.  L.  Brown,  individually,  and  there 
is  no  evidence  that  it  ever  did  become  the  property  of  the 
firm. 

In  passing  on  all  of  the  exceptions,  we  have  been  governed 
by  a  well  established  rule  in  the  law  applicable  to  copartners, 
i.  e.  where  a  partner,  whose  duty  it  is  to  keep  the  books,  seeks 
to  make  a  charge  in  his  own  favor,  which  is  not  supported  b}'^ 
a  proper  entry  on  the  books,  he  must  account  for  that  fact, 
and  can  only  support  the  charge  by  clear  proof;  for  every 
presumption  is  made  against  him,  inasmuch  as  between  part- 
ners, their  books  have  the  verity  of  a  record.  If  the  defend- 
ant, by  the  application  of  this  rule,  has  lost  any  one  claim, 
which  is  a  just  one,  it  is  his  misfortune,  and  the  result  of  his 
own  neglect  in  not  making  the  proper  entry.  The  matter  was 
not  helped  by  his  attempt  to  manufacture  evidence  in  order  to 


DECEMBER  TERM,  1860.  59 

Fleming  v.  Murph. 

supply  the  omission,  and  he  was  certain!}'  ill  advised  in  ui'g- 
ing  charges  upon  insufficient  proof. 

There  will  be  a  reference,  in  order  to  show  the  balance  af- 
ter bringing  into  the  account  the  sum  of  $2021.49,  which  was 
omitted,  and  the  report  will  be  in  all  things  confirmed. 

Per  Curiam,  Decree  accordingly. 


JOHN  G.  FLEMING,  Exr.,  against  JEFFRY  ilURPH. 

Where,  in  a  suit  for  an  account,  plaintiff  obtained  leave  to  examine  defendant 
upon  oath,  before  the  master,  and  lie  was  interrogated  as  to  the  items  of 
plaintiff's  account,  it  was  held  that  defendant's  answers  were  evidence  for 
himself,  only  so  far  as  they  were  responsive  to  the  questions,  and  that  he 
could  not,  in  this  way,  prove  his  charges  against  plaintiff. 

Where  the  plaintiff,  in  a  suit,  failed  to  file  a  replication  to  the  answer,  and  tlie 
parties  proceeded  to  take  proofs  in  the  cause,  this  was  held  a  waiver  by  the 
defendant  of  a  replication,  and  the  Court  allowed  an  amendment  under  the 
17th  section  of  the  33rd  chap,  of  the  Rev.  Code. 

Cavse  removed  from  the  Court  of  Equity  of  Rowan  county. 

The  bill  is  filed  against  the  defendant  as  a  partner  of  the 
plaintiff's  intestate  in  a  saw-mill,  and  prays  for  an  account 
and  discovery  of  the  matters  pertaining  to  the  copartnership. 

Upon  the  coming  in  of  the  answer,  the  cause  was  referred  to 
the  master  to  state  an  account,  and  leave  was  given  to  exam- 
ine the  defendant  upon  oath. 

Upon  his  examination  before  the  master,  he  testified  tiiat 
plaintift''s  account  was  correct,  with  the  exception  of  two 
items;  he  then  proceeded  to  state  that  the  phiintiif's  intestate 
was  indebted  to  him  for  work  done  on  his  farm,  and  also  on 
his  mill,  for  which  sums,  he  alleged  the  intestate  had  failed 
to  give  him  credit  on  the  books ;  these,  he  proceeded  to  prove 
in  detail. 


^  IN  THE  SUPEEME  COUKT. 

Fleming  v.  Murph. 

Plaintiff  objected  to  the  defendant's  proving  his  account  by 
his  own  oath,  tor  the  reason  that  it  was  more  than  two  j^ears 
old,  and  to  his  proving  more  than  sixty  dollars  of  it,  if  it  were 
not  two  years  old.  But  the  master  permitted  him  to  prove 
his  whole  account.    For  this,  tlie  plaintiff  excepted  to  the  report. 

The  cause  being  set  for  hearing  upon  the  bill,  answer, 
proofs,  report  of  the  master  and  exceptions  filed,  was  trans- 
mitted to  this  Court. 

Fleming  and  Bar^jer^  for  the  plaintiff. 
Boyden^  for  the  defendant. 

Battlp:,  J.  There  is  one  question  embraced  in  the  plain- 
tiff's exception  to  the  master's  report,  which,  if  sustained, 
will  render  it  necessary  to  have  the  account  retaken.  It  is, 
that  though  the  plaintiff  examined  the  defendant,  under  an 
order  of  the  Court,  obtained  for  that  purpose,  his  answers  are 
not  evidence  for  himself,  except  where  they  are  directly  respon- 
sive to  the  interrogatories  put  to  him.  It  is  cleai'ly  settled  that 
an  answer,  to  which  a  replication  has  been  filed,  is  only  evi- 
dence for  the  defendant,  in  the  particulars  in  which  it  is  re- 
sponsive to  the  allegations  of  the  bill,  and  that  all  other  mat- 
ters of  defense  therein  set  up,  must  be  proved  by  the  defend- 
ant ;  2  Stor.  Eq.  sec.  1528  and  1529.  Neither  Judge  Stoey, 
nor  any  other  elementary  writer,  whose  work  we  liave  exam- 
ined, states,  particularly,  what  effect  is  to  be  given  to  the  an- 
swers made  by  defendant,  when  examined  upon  interroga- 
tories, but  in  the  case  of  Chaffin  v.  Chajjin^  2  Dev.  and  Bat. 
Eq.  263,  KuFFiN,  C.  J.,  whose  knowledge  of  equity  practice 
was  extensive  and  accurate,  said  with  respect  to  the  examin- 
ation of  a  defendant  upon  the  stating  of  an  account  before 
the  master,  that  "  it  has  been  thus  made  evidence  for  him,  so 
far  as  it  is  responsive  to  tiie  interrogatory,  in  the  same  man- 
ner, and  upon  the  same  principle,  that  the  defendant's  answer 
is  evidence  for  him."  "  In  suits  for  accounts,"  (he  continued) 
"  it  is  impossible  tlie  pleadings  can  put  every  matter  pre- 
cisely in  issue,  and,  therefore,  wlien  the  parties  go  before  the 
master,  the  plaintifi's  may  help  out  their  bill  by  special  inter- 


DECEMBER  TERM,  1860.  61 


Fleming  v.  Murph. 


rogatories  to  the  other  party.  Bnt  then,  tlie  interrogatories 
must  be  looked  at  in  the  light  of  being  particular  charges, 
supplemental  to  those  more  general  one's  of  the  bill  ;  and  so 
the  responses  are,  in  this  serse,  to  be  transferred  to  the  an- 
swer, and  made  evidence  in  the  cause,  though  subject  to  con- 
tradiction." It  appears  then,  that  the  answers,  made  by  a 
defendant,  to  interrogatories  upon  his  examination  before  the 
master,  are  evidence  for  him,  upon  the  same  principle,  and  to 
the  same  extent  only,  as  is  his  answer  to  the  bill.  It  follows, 
that  if  he  be  examined  as  to  the  items  of  the  plaintirt" 's  ac- 
count, his  reply  will  be  evidence  for  him,  ui)on  the  ground, 
that  as  to  them,  the  plaintiff  has  made  him  a  witness  in  the 
cause,  and  the  sauie  rule  would  apply  as  to  any  other  mat- 
ters, about  which  the  plaintiff  might  think  proper  to  interro- 
gate him  ;  but  he  cannot  be  allowed  to  become  a  witness  for 
himself  to  prove  charges,  which  he  nuiy  have  made  against 
the  plaintiff',  and  as  to  which,  no  interrogatories  have  been 
put  to  him.  Such  charges  he  may  prove  to  the  extent  of 
sixtj'  dollars,  if  he  be  prepared  to  do  so,  under  the  book  debt 
law;  and  ali  above  that  amount,  he  must  prove,  if  ho  can,  by 
independent  testimony.  In  the  present  case,  however,  the 
counsel,  for  the  defendant,  contends  that  the  answer  to  the 
bill,  must  be  taken  as  true,  because  there  was  no  replication 
tiled.  This  would  be  so,  if  the  parties  in  the  Court  below  had 
not  proceeded  to  take  proofs,  as  if  a  replication  had  been  filed. 
The  transcript  shows  that  the  cause  was  set  for  hearing  upon 
bill,  answer,  proofs,  report  of  the  master  and  exceptions  filed, 
and  then,  by  consent,  was  transferred  to  the  Supreme  Court. 
When  proofs  have  been  taken,  we  consider  the  case  as  if  a 
replication  had  been  filed,  and  we  allow  an  amendment  to 
that  effect  here,  as  we  are  authorised  to  do  by  the  17th  sec- 
tion of  the  33rd  chapter  of  the  Revised  Code ;  see  Jones  v. 
/*oston,  2  Jones'  Eq.  184. 

The  cause  must  be  referred  again  to  the  master  to  state  an 
account  between  the  parties,  upon  the  principle  herein  de- 
clared. 

Pek  Curiam,  Decree  accordingly. 


62  IN  THE  SUPKEME  COUKT. 


Williamson  v.   Williams. 


AMELIA  WILLIAMSON  AND   OTHERS  agaijist  H.  B.  WILLIAMS. 

A  guardian  is  entitled  to  commissions  on  payments  made  for  goods  bought  of 
a  firm,  of  which  he  was  a  member ;  but  not  on  charges  for  board  while  his 
ward  lived  in  his  family. 

Where  a  guardian  waited  six  months  after  the  principal  in  a  note,  held  by 
him  as  guardian,  died  insolvent  before  he  sued  the  surety,  who  also  be- 
came insolvent  before  suit  was  brought,  such  surety,  though  much  indebt- 
ed, being,  up  to  one  month  before  his  failure,  in  good  credit,  and  failed 
suddenly,  the  guardian  having  opportunity  all  the  time  of  knowing  the  true 
condition  of  the  obligors,  it  was  held  that  by  his  laches,  he  made  himself 
responsible  for  the  loss  of  the  debt. 

Cause  removed  from  the  Court  of  Equity  of  Mecklenburg 
county. 

The  defendant  having  been  held  liable  to  account  by  a  ])ve- 
vious  declaration  of  this  Court,  it  was  referred  to  A.  C  Wil- 
liamson, Esq.,  clerk  and  master  in  equity  of  Mecklenburg 
county,  to  state  the  account  between  the  defendant  and  his 
wards.  At  this  term,  the  commissioner  filed  reports,  setting  forth, 
separately,  the  defendant's  indebtedness  to  his  wards,  to  which 
both  plaintiff  and  defendant  excepted.  The  plaintiff  except- 
ed, because  the  commissioner  allowed  5  per  cent,  commis- 
sions on  individual  vouchers,  (naming  them  by  their  numbers,) 
being  accounts  for  goods  and  money  furnished  to  complain- 
ant, Amelia,  by  the  firm  of  H.  B.  &  L.  S.  Williams,  of 
which  he  was  a  member. 

■3.  The  plaintiff  excepted  to  the  allowance  of  commissions 
on  the  sums,  mentioned  in  said  report,  charged  by  the  defend- 
ant against  his  ward,  Amelia,  for  her  board  in  her  guardian's 
family. 

The  defendant  excepted  to  the  commissioners  report,  be- 
cause that  he  was  charged  with  a  debt,  due  by  bond,  from 
John  E.  Penman  and  W.  W.  Elms  to  the  defendant,  as  guar- 
dian, for  principal  and  interest,  about  $1192.  The  commis- 
sioner reports  the  testimony,  which  proves  the  facts  to  be,  in  sub- 
stance, that  the  bond  was  given  for  the  hires,  for  the  year 
1855,  of  slaves,  belonging   to  the  defendant's  wards,  which 


DECEMBER  TERM,  1860.  6^ 


Williamson  v.  Williams. 


bond,  fell  due  on  the  first  of  Jannaij,  1854.     Penman  having 
made  a  deed  of  trust  of  all  his  property  in  the  latter  part  of 
1854,  died,   intestate,   in    May,   1855,   and  at   July   Term  of 
Mecklenburg  County  Court  of  that  year,  administration  was 
taken  on  his  estate.     In  November  following,  suit  was  brouo>ht 
on  the  bond  against  the  said  administrator  and  the  surety, 
returnable  to  the  January  Term,  1856,  of  the  said  Court.     At 
April  Term,  1856,  the  pleas  of  fully  administered,  were  found 
in  fiivor  of  the   administrator,    and  a  judgment   was  taken 
against  Elms  for  the  debt ;  an  execution  was  issued  thereon, 
and  "nulla  bona"  returned  by  the  sheriff  of  Mecklenburg' 
Elms,  in  the  mean  time,  having  also  failed.     In  Novembet,' 
1854,  Penman  made  a  deed  of  trust  of  all  his  property  for  the 
payment  of  his  debts.     This  property  consisted  of  two  houses 
and  lots  in  Charlotte,  and  a  large  number  of  interests  in  gold 
mines  of  uncertain  value,  and  at  the  time  of  his  death,  Avas 
utterly  insolvent.     Elms,  the  surety,  from  January,  1854,  to 
October,  1855,  was  in  the  possession  of  a  large  amount  of  pro- 
perty; in  the  latter  month,  (October)  judgnients  were  taken 
against  him  to  the  amount  of  $167,714  ;  of  which  judgments, 
the  amount  of  5^46.568  were  taken  by  the  bank  of'  Charlotte, 
of  which  the  defendant  Avas  the  president.     Elms'  credit  was 
good  until  shortly  before   the  rendition  of  these  judgments, 
though  it  was  generally  known   that  he  was  xary  lai-gely  in- 
debted.    After  these  judgments,  he  was  generally  known  to 
be  insolvent.     Penman,  Elms,  and  the  defendant,  all  three,  re- 
sided in  the  town  of  Charlotte.     One  witness  stated,  that  in 
the  winter  of  1854,  or  early  in  the  spring  of  1855,  he  was  pro- 
tested, as  the  endorser   of  Elms'  paper,  in  the  Bank  of  the 
State,  and  he  refused  to  endorse  for  him  any  further.     It  ap- 
peared that  each  of  the  banks  knew  that  Elms  was  doing  bu- 
siness in  the  other,  but  neither  knew  of  the  amount  of  his 
liabilities  to  the  other. 

On  these  facts,  the  commissioner  thought  the  guardian  was 
guilty  of  negligence,  and  so  charged  him  with  the  amount  of 
the  debt. 


64  IN  THE  SUPREME  COURT. 


Williamson  v.  Williams. 


Thompson  and  Fowle,  tor  the  plan  tiff. 
Wilson^  tbr  the  Guardian. 
Lowrie^  fur  one  of  the  wards,  made  defendant. 

Battle,  J.  This  cause,  now  comes  before  ns  for  further 
directions,  upon  the  exceptions  taken  by  both  parties  to  the 
master's  report.  The  complainants  except  totiie  commissions 
allowed  the  defendant,  Williams,  as  guardian,  upon  the  dis- 
bursements for  bills  paid  for  his  wards  to  mercantile  firms,  of 
wiiich  he  was  a  partner.  We  see  no  reason  for  this  excep- 
tion. The  guardian  was  as  much  bound  to  make  payment  to 
the  partnership,  of  wliich  he  was  a  member,  for  goods  pur- 
chased for  his  wards,  as  he  would  have  been  to  any  other 
partnership  or  person.     The  exception  is  over-ruled. 

But  the  next,  which  is  to  the  allowance  of  a  commission  on 
the  sntn,  retained  by  him,  for  the  board  of  his  ward  with 
himself,  is  allowed.  We  suppose  that  an  executor  or  admin- 
istrator, cannot  claim  a  commission  on  a  sum  retained  in 
})ayment  of  his  own  debt,  upon  the  ground  that  a  retainer 
cannot  be  considered  a  disbursement,  within  the  meaning  of 
the  statute,  which  gives  commissions.  So,  we  think  a  guar- 
dian cannot  consider  that  as  a  disbursement,  with  reference 
to  commissions,  which  consists  merel}^  in  keeping  in  his  own 
pocket,  money  due  from  his  ward  to  himself. 

The  exception  of  the  defendant,  Williams,  is,  that  the  mas- 
ter has  refused  to  credit  him  with  the  amount  of  a  bond  and 
the  interest  thereon,  payable  to  him,  as  guardian,  by  John  E. 
Penman  and  W.  W.  Elms.  The  bond  was  given  for  the  hire 
of  negroes  during  the  year  1853,  and  became  due  on  the  first 
day  of  January,  ISoi.  It  was  for  the  sum  of  $1089,  with  a 
credit  of  $107.50,  endorsed  as  paid  on  18th  August,  1855. 
The  defendant  alleges  that  the  bond  was  lost  without  any 
negligence  on  his  part,  but  the  master  reports  to  the  contrary, 
and  the  exception  brings  the  question  before  us  for  review. 
Upon  an  examination  of  the  testimony,  and  applying  it  to 
the  law  as  established  in  relation  to  the  responsibility  of  guar- 
dians, we  are  led  to  the  conclusion  that  the  master's  report  is 


DECEMBER  TERM,  1860.  65 


Williamson  v.  Williams. 


correct.     In  the  Revised  Code,  chapter  54,  section  23,  it  is 
made  the  doty  of  the  guardian  to  lend  out  the  surplus  profits 
of  his  wards'  estate  upon  bonds  with  sufKcient  security,  but  it 
is  expressly  required  of  him  "  that  when  the  debtor  or  his 
sureties  arc  likely  to  become  insolvent,  the  guardian  shall  use 
all  lawful  means  to  enforce  the  payment  thereof,  on  pain  of 
being  liable  for  the  same."     The  guardian,  then,  was  acting 
within  tiic  line  of  his  duty  in  permitting  the  bond  to  remain 
uncollected  when  it  fell  due,  as  both   the    principal  and  his 
gurety  were  then  (as  he  had  every  reason  to  believe)  entirely 
solvent.     Such,  and  no  more,  is  the  effect  of  the  decision  in 
the  case  of  Goodson  v.    Goodson,  6  Ire.  Eq.  23S,  to  which  we 
were  referred  by  the  defendant's  counsel.     But  when  the  prin- 
cipal obligor  failed,  by  making  an  assignment,   in   trust,  for 
the  payment  of  his  debts,  in  the  latter  part  of  the  year  1854, 
it  was  the  duty  of  the  guardian  to  take  immediate  steps  for  the 
collection  of  the  debt  or  have  it  better  secured.     It  will  not 
do  to  tell  us  that  it  is  not  proved,  that  he  knew  of  the  assign- 
ment.    He  lived  in  the  same  town  with  the  principal  debtor, 
knew  that  he  had  but  little  property  except  in  gold  mines,  in 
which  he  was  a  speculator,  and  of  the  value  of  which,  nobody 
could  tell.     He  ought  then  to  have  kept  himself  informed  of 
the  pecuniary  condition  of  that  debtor,  and  it  was  negligence 
in  him  not  to  have  done  so,  for  if  he  had,  he  might  have  saved 
the  debt.     After  the  insolvency  of  the  principal,  he  was  not 
justified  in  relying  solely  upon  the  surety  for  so  large  a  sum, 
no  matter  what  may  have  been  the  apparent  wealth  and  ac- 
tual credit  of  that  surety.     That  such  has  been  the  construc- 
tion of  our  statute  in  relation  to  the  duty   of  the  guardian  in 
Buch  cases,  appears,  as  we  think,  from  the  cases  of  Boyeit  v. 
Rurst,  1  Jones'  Eq.  1G7,  and  NeUon  v.  Hall,  5  Jones'  Eq.  32. 
In  the  latter  case,  indeed,  the  plaintiff",  who  was  an  executor, 
and  who  was  directed  by  the  will  of  his  testator,  to  keep  the 
money  invested  in  good  bonds,  was  not  held  responsible  ;  but 
it  was,  partly,  because  the  sum  was  very  small,  only  $50,  and 
partly,  because   the   princii)al  became  insolvent  only  a  few 
months  before  the  failure  of  his  surety.     Here,  the  debt  was 

5 


IN  THE  SUPREME  COURT. 


Mitchell  V.  Ward. 


large,  and  the  principal  debtor  made  his  assignment  more 
than  twelve  months,  and  died  several  months,  before  the  fail- 
ure of  the  surety  and  before  the  guardian  made  the  least  ef- 
fort to  collect  the  debt.  In  the  other  cases,  cited  bj  the  de- 
fendant's counsel,  the  executors  or  administrators  were  not 
held  responsible  for  the  loss  of  certain  debts,  but  it  was  be- 
cause they  showed  much  more  diligence  in  attempting  to  col- 
lect them  than  can  be  pretended  for  this  defendant ;  see  De- 
herry  v.  Ivey,  2  Jones'  Eq.  370,  and  Davis  v.  Marcum,  4  , 
Jones'  Eq.  189. 

The  exception  is  over-ruled,  and  the  master's  report,  after 
being  reformed  in  the  manner  made  necessary  by  our  sus- 
taining one  of  the  plaintiff's  exceptions,  will  be  confirmed. 

Per  Curiam,  Decree  accordingly. 


HENRY  MITCHELL  AND  OTHERS  against  WILLIAM  WARD  AND 

ANOTHER. 

Where  a  slierifF  left  his  county  for  something  over  a  month,  on  necessary 
business,  with  an  intention  of  returning  by  a  given  time,  it  not  appearing 
tliat  he  was  insolvent,  it  was  held  that  the  fact  of  a  deputy's  having  applied 
a  portion  of  the  taxes  of  a  given  year  to  a  judgment  against  him  (the  sher- 
iff) for  the  taxes  of  a  preceding  year,  without  being  instructed  so  to  do,  by 
the  sheriff,  was  not  a  sufficient  ground  for  the  sureties  of  that  year  to  have 
an  injunction  to  restrain  the  sheriff  from  paying  the  taxes  of  that  year,  oik-' 
erwise  than  as  the  law  directs. 

Appeal  from  an  interlocutory  order  of  the  Court  of  Equity 
of  Martin  county. 

The  plaintiffs  alledge  that  they  became  the  sureties  of  the 
defendant,  W.  W.  Ward,  on  liis  sheriff's  bond,  at  October 
term,  1859,  of  Martin  County  Court ;  that  since  then  the  said 
"Ward  had  conveyed  all  his  property  for  the  payment  of  his 


DECEMBER  TERM,  1860.  67 


Mitchell  V.  Ward. 


creditors,  and  has  become  insolvent,  leaving  no  indemnity  for 
them,  and  that  he  is  a  defaulter  to  a  large  amount;  that  the 
said  Ward  had  left  the  State,  and  as  plaintiffs  believe,  did  not 
intend  to  return  ;  that  previously  to  going  off,  he  placed  the 
tax  lists  of  the  county  of  Martin  for  the  year,  1860,  in  the 
hands  of  the  other  defendant,  William  J,  Hardison,  one  of 
his  deputies,  and  that  the  said  deputy,  under  the  directions  of 
the  said  Ward,  was  collecting  tlie  said  taxes  of  1860,  and  ap- 
plying the  money  to  his,  (Ward's)  private  debts,  and  in  par- 
ticular, that  he  had  paid  $500  of  the  money  thus  collected,  to 
one  D.  W.  Bagley,  the  county  trustee,  on  a  judgment  obtain- 
ed against  him,  (Ward,)  at  a  previous  term  of  the  Court  for 
taxes  due  of  a  former  year. 

The  prayer  is  that  the}-^  "  may  be  restrained  by  an  order  and 
injunction  of  this  Honorable  Court,  from  applying  the  money 
or  any  part  thereof,  received  for  taxes  due  the  present  year,  to 
any  other  purpose,  use  or  benefit,  than  as  the  law  directs ;" 
and  that  they  may  be  in  like  manner  restrained  as  to  any  of 
the  said  taxes  which  they  may  hereafter  collect. 

The  defendants  both  answered.  Ward  denies  that  he  left 
the  State  with  a  view  to  a  permanent  removal.  He  says  that 
having  a  very  distressing  and  dangerons  disease  in  his  eyes, 
he  left  the  State  on  the  12th  of  April,  1860,  for  the  purpose  of 
obtaining  medical  aid  in  the  city  of  jSTew  Tork;  that  he  pub- 
licly made  known  his  intention  of  going,  and  his  purpose  in 
going,  and  also,  let  it  be  knov.-n  that  he  would  return  before 
July  court  of  that  count}^,  but  that  he  did  in  fact  return  on 
21st  of  May.  He  admits  that  he  made  a  deed  of  trust  to  se- 
cure divers  of  his  creditors,  but  denies  that  he  is  Insolvent.— 
He  says  that  having  private  claims  in  the  hands  of  the  defen- 
dant, Hardison,  a  constable,  to  the  amount  of  more  than  a 
thousand  dollars,  and  also,  having  placed  in  his  hands  tax  lists 
for  previous  years,  on  the  eve  ot  his  departure,  he  placed  this 
list  for  1860,  also  in  his  hands.  He  says  that  he  owed  .D.  W. 
Bagley  $500,  a  balance  of  a  judgment,  and  that  he  gave  Har- 
dison directions  to  pay  this  balance  for  him,  but  he  did  not  direct 
him  to  pay  the  amount  out  of  the  tax  money  of  1860,  nor  did  he 


68  IN  THE  SUPKEME  COUKT. 

Mitchell  V.  Ward. 

direct  him  to  pay  it  out  of  any  particular  funds  in  his  hands. 
He  admits  that  Hardison  told  him  that  he  paid  it  out  of  the 
taxes  of  1860,  but  says  it  was  not  necessary  for  him  to  do  so. 
Hardison  gives  the  same  account  of  this  payment,  but  says  it 
was  not  necessary  that  he  should  have  used  this  particular 
money,  as  he  could  easily  have  collected  from  other  sources 
enough  to  have  met  the  claim. 

On  the  coming  in  of  the  answers,  the  Court  ordered  the  in- 
junction to  be  dissolved  as  to  Hardison,  but  to  be  continued 
as  to  Ward,  to  the  hearing.  From  this  order,  Ward  appealed 
to  this  Court. 

No  counsel  appeared  for  the  plaintiff  in  this  Court. 
Hodman  and  Stubbs,  for  the  defendants. 

Manly,  J.  We  are  not  aware  of  any  principle  of  equity 
by  which  the  continuance  of  the  injunction  can  be  sustained. 

The  bill  alledges  that  the  defendant.  Ward,  slieriff  of  Mar- 
tin county,  upon  whose  bond  plaintiffs  are  sureties,  had  be- 
come insolvent,  and  left  the  county  not  to  return  ;  that  his  tax 
lists  were  placed  in  the  hands  of  a  deputy,  the  other  defend- 
ant, who  was  collecting  and  misapplying  the  moneys.  The 
answers  deny  the  insolvency  and  the  permanent  removal  from 
the  county,  but  admits  that  the  deputy  paid  a  judgment  which 
he  had  general  instructions,  from  his  pribcipal,  to  pay,  with 
monej'^s  not  applicable  to  it.  The  answers  both  state  the  judg- 
ment was  for  taxes  due  the  previous  year,  and  the  deputy  had 
lists  of  taxes  for  both  that,  and  the  then  current  year,  to  col- 
lect ;  and  the  misapplication  in  question  was  without  authori- 
ty from  the  sheriff. 

Upon  the  coming  in  of  the  answers,  the  injunction  was  dis- 
solved as  to  the  deputy,  but  continued  as  to  the  sheriff  until 
the  hearing. 

Upon  this  state  of  the  pleadings,  the  question  is,  whether 
the  sheriff  will  be  kept  under  an  injunction  not  to  misapply 
fmnds,  which  are  in  his  hands  viriute  officii^  upon  an  admis- 


DECEMBER  TERM,  1860.  69 


Mitchell  v..  Ward. 


fiion  of  a  misapplication,  in  one  instance,  by  a  deputy,  under 
the  circumstances  stated. 

It  seems  to  us,  an  injunction  in  such  case,  cannot  be  sus- 
tained except  upon  a  principle  which  will  justify  a  resort  to  a 
court  of  equity  in  all  cases  of  public  officers,  to  enjoin  a  fulfil- 
ment of  their  duties;  and  thus  it  will  be  in  the  power  of  the 
sureties,  through  that  court,  to  add  to  the  penalties  prescrib- 
ed by  the  legislative  power,  for  misprison  in  office,  the  penal- 
ty of  contempt  of  court.  We  know  of  no  instance  in  which 
such  an  equity  has  been  recognised  by  the  courts- 

The  sheriff  is  bound  to  the  performance  of  his  duties  under 
the  obligation  of  an  oath,  and  by  other  severe  pains  and  pen- 
alties, and  also  by  a  strict  accountability  to  others  at  short  in- 
tervals. For  moneys  in  his  hands,  withheld  from  the  proper 
owner  or  office,  he  is  subject  to  summary  judgments  with  pen- 
alties. For  neglecting,  or  refusing  to  perform  any  duty  he  is 
not  only  subject,  generally,  to  a  pecuniary  penalty,  but  is  fur- 
tliermore  liable  to  be  indicted  as  for  a  misdemeanor,  and  upon 
conviction  deprived  of  office,  as  well  as  punished  according  to 
the  common  law ;  Rev.  Code,  ch.  99,  sec.  122 ;  ch.  29,  sec.  5 ; 
ch.  34,  sec.  119;  ch.  105,  sec.  11. 

These  are  the  safe-guards  which  the  law  has  provided  for 
the  public,  and,  in  ordinary  cases,  where  no  grounds  are  laid 
for  a  receiver  and  sequestration,  they  must  suffice  for  the  sure- 
ties. 

The  order  made  below,  continuing  the  injunction  as  to  the 
sheriff,  until  the  hearing,  and  which  was  appealed  from,  should 
be  reversed ;  and  to  this  end,  the  opinion  will  be  certified. 

Per  Cdkiam,  Order  belew  reversed. 


70  IN  THE  SUPREME  COURT. 


Blacknall  v.  Parish. 


RICHARD  BLACKNALL  against  WILLIAMSON  PARISH. 

Where  a  paper-writing  was  signed  and  sealed  by  the  owner  of  land,  with 
blanks  as  to  the  name  of  the  bargainee  and  left  with  an  agent,  ivho  was 
authorised,  bj'  parol,  to  fill  up  the  blanks  with  the  name  of  the  purchaser 
and  the  price,  it  was  held  that,  though  such  an  instrument  could  not  ope- 
rate as  a  deed,  yet,  it  was  a  contract  for  the  sale  of  land,  signed,  for  the 
person  to  be  charged  therewith,  by  his  lawfully  authorised  agent,  and  could 
be  specifically  enforced. 

A  memorandum  or  note  of  a  contract  may  be  signed  by  one  in  the  name  of 
his  principal,  so  as  to  comply  with  the  requisitions  of  the  statute  of  frauds, 
without  being  thereunto  authoi'ised  in  writing. 

Cause  removed  from  the  Court  of  Equity  of  Orange  county. 

This  was  a  bill  filed  for  the  specific  performance  of  a  con- 
tract, by  which  the  defendant  bound  himself  to  convey  to  the 
plaintiff  a  tract  of  land,  described  by  its  metes  and  bounds, 
and  lying  in  Orange  county.  The  allegations  in  the  bill 
(which  are  sustained  by  the  evidence  filed)  are,  that  the  de- 
fendant, being  about  to  remove  from  the  county  of  Orange, 
where  he  lived,  to  the  western  part  of  the  State,  authorised 
one  Harrison  Parker  to  sell,  for  him,  the  land  in  question,  and 
to  enable  him  to  do  so,  he  prepared  a  deed,  describing  the 
premises,  and  purporting  to  convey  the  same  in  fee,  but  leav- 
ing therein  blanks  as  to  the  name  of  the  bargainee  and  the 
price,  with  instructions,  when  he  might  make  sale  of  the  land, 
to  fill  up  the  blanks  in  the  deed,  and  deliver  it  to  the  pur- 
chaser ;  that  afterwards,  Parker  made  a  sale  to  the  plaintifi', 
at  a  reasonable  price,  and,  accordingly,  filled  up  the  deed  in 
the  requisite  particulars,  with  the  name  of  the  plaintitf  and 
with  the  price  ;  both  supposing  the  instrument  was  thus  made 
good  as  a  deed  ;  that  Blacknall  gave  his  bond  for  the  money 
to  the  defendant's  agent,  who  used  the  same  in  the  purchase 
of  a  slave  for  the  defendant,  and  it  was,  subsequently,  paid  to 
defendant's  assignee. 

The  prayer  of  the  bill  is  for  a  specific  performance  of  the 
contract,  evidenced  by  the  imperfect  deed,  and  to  stay,  by  an 
injunction,  the  proceedings  of  an  action  of  ejectment,  which 


DECEMBER  TERM,  1860.  11 

Blacknall  v.  Parish. 

the  defendant  had  brought  against  the  plaintiff,  and  which 
was  then  pending  in  the  Superior  Court  of  Orange  county. 

The  defendant  answered,  denying  the  authority  of  Parker 
to  sell  to  Blacknall,  and  alleging  that  he  had  special  objec- 
tions to  plaintiff's  having  the  land,  which  are  stated ;  and 
that  the  deed  in  question,  was  prepared  for  the  purpose  of 
consummating  a  sale  to  one  Hopkins,  with  whom  he  was  in 
treaty  when  he  left  the  county,  and  tiiat  his  agent  had  no  au- 
thority to  deliver  it  to  any  one  else.  He  relied  on  the  statute 
of  frauds  as  a  bar  to  the  plaintiff's  equity. 

On  the  coming  in  of  the  answers,  the  injunction,  which  had 
issued  in  vacation,  was  dissolved,  and  the  bill  continued  over 
as  an  original  bill.  Proofs  were  taken,  M'hich  sustained  the 
plaintiff's  allegations  and  disproved  those  of  the  defendant. 
The  cause  being  set  for  hearing,  was  transmitted  to  this  Court 
by  consent. 

Norwood^  for  the  plaintiff. 
Ch'aham^  for  the  defendant. 

Battle,  J.  Upon  examination  of  the  testimony  taken  in 
this  cause,  we  are  entirely  satisfied  that  the  land,  mentioned 
in  the  pleadings,  was  contracted  to  be  sold  to  the  plaintiff  by 
an  authorised  agent  of  the  defendant ;  that  the  authority,  un- 
der which  the  agent  acted,  was  by  parol,  and  that  the 
contract  was  entered  into  by  the  agent's  filling  up  certain 
blanks  in  an  instrument,  which  the  defendant  had  signed  and 
sealed,  and  left  with  the  agent  to  be,  by  him,  made  complete 
by  filling  up  such  blanks  and  delivering  it  as  the  deed  of  the 
defendant  to  the  person  who  should  become  the  purchaser. 
We  are  further  satisfied,  that  what  was  intended  to  be  a  sale, 
was  made  fairl)',  and  for  a  price,  which,  at  the  time,  was  not 
inadequate,  and  fnrthei',  that  tiie  price  was,  subsequently,  re- 
ceived by  the  defendant. 

It  has  been  properly  admitted  by  the  plaintiff,  that  the  in- 
strument, which  was  delivered  to  him  by  the  agent  of  the  de- 
fendant, as  a  deed  for  the  land  in  question,  could  not  operate 


T2  m  THE  SUPREME  COURT. 

Blacknall  v.  Parish. 

as  such,  because,  it  was  not  complete  when  it  was  signed  and 
sealed  by  tlie  defendant.  In  the  case  of  Davenport  v.  Sleight^ 
1  Dev.  and  Ijat.  licp.  381,  and  again  in  Gvahani  v.  llolt^  3 
Ire.  Rep.  300,  it  was  held  that  an  instrument,  signed  and  seal- 
ed in  blank,  and  handed  to  an  agent,  only  verbally  authoris- 
ed to  till  up  the  blank,  and  deliver  it,  was  not  the  bond  of 
the  principal,  and  that  after  declarations  of  the  principal,  ap- 
proving of  the  delivery  by  the  agent,  made  in  the  absence  of 
the  instrument,  and  M'ithout  any  act  in  relation  to  it,  would 
not  amount  to  an  adoption  and  ratilication  of  the  delivery. 

The  case  before  us  is  one  of  a  deed  for  land,  instead  of  a 
bond  for  the  payment  of  money,  but  the  principle  is  the  same. 
The  instrument  must  bo  complete  before  it  can  be  delivered 
by  an  agent,  acting  under  a  mere  parol  authority,  as  the  act 
and  deed  of  his  principal. 

The  plaintiff,  not  being  able  to  set  up  a  legal  title  under 
the  instrument  in  question,  insists,  nevertheless,  that  it  is  evi- 
dence of  a  contract,  the  specific  performance  of  which,  he  has 
a  right  to  have  enforced  in  a  court  of  equity.  The  defendant 
objects  to  this,  and  relies,  in  support  of  his  objection,  upon 
the  statute  of  frauds,  which  declares  "  that  all  contracts  to  sell 
or  convey  any  lands,  Arc,  shall  be  void  and  of  no  effect,  un- 
less such  contract,  &c.,  or  some  memorandum  or  note  thereof, 
shall  be  put  in  writing,  signed  by  the  party  to  be  charged 
therewith,  or  by  some  other  person,  by  him,  thereunto  lawful- 
ly authorised,  &c. ;"  Revised  Code,  chap.  50,  sec.  11.  The 
question  then,  is  ;  firsts  whetlier  the  contract,  for  the  sale  of  the 
land,  was  put  in  writing  ;  and  seccmdly^  was  it  signed  b}^  the 
party  to  be  charged  therewith,  or  by  any  person,  by  him,  thereto 
lawfully  authorised.  Wo  think  that  there  can  be  no  doubt 
that  the  instrument,  which,  for  the  reasons  above  stated,  could 
not  operate  as  a  deed,  may  be  regarded  as  a  contract  put  in 
writing.  It  is  in  truth  a  written  contract  more  than  ordina- 
rily complete,  both  in  form  and  substance,  and  the  only  ques- 
tion, admitting  of  any  sort  of  doubt,  is,  whether  it  has  been 
signed  by  the  defendant,  or  by  any  legally  authorised  agent. 
We  are  of  opinion  that  it  cannot  be  considered  as  a  contract 


DECEMBER  TERM,  1860.  75 


Hughes  V.  Blackwell. 


with  the  plaintiff,  signed  by  the  defendant  himself,  indepen- 
dently of  an}'-  act  of  his  agent,  because,  when  the  defendant 
put  his  name  and  seal  to  it,  no  such  contract  had  been  made. 
But  we  think  that,  in  legal  effect,  it  was  signed  for  him,  and 
in  his  name,  by  his  properly  constituted  agent.  The  failure 
of  the  agent  to  make  the  instrument  operate  as  the  deed  of 
his  principal,  did  not  prevent  him  from  causing  it  to  operate 
as  the  simple  contract  of  his  principal ;  for  nothing  is  more 
common  than  for  an  agent  to  fill  up  blanks  in  a  promissory 
note  signed  by  his  principal,  and  no  body  has  ever  doubted 
that  the  principal  was  bound  by  it.  That  the  authority'  of 
the  agent,  in  all  such  cases,  may,  under  the  statute  of  frauds, 
be  by  parol,  is  M'ell  settled  ;  1  Parsons  on  Cont.  42 ;  2  Kent's 
Com.  612 ;  Coles  v.  Trecothic^  9  Ves.  Jun.,  250. 

The  plaintiff  is  entitled  to  a  decree  for  a  specific  perform- 
ance, and  also  to  recover  back  all  the  costs  which  he  has  been 
compelled  to  pay  in  the  action  of  ejectment  at  law,  and  also 
the  costs  which  he  has  had  to  pay  upon  the  dissolution  of  the 
injunction  in  the  Court  of  Equity  below  ;  to  ascertain  which 
an  account  may  be  ordered. 

Per  Cukiam,  Decree  accordingly. 


ISAAC  W.  HUGHES  against  R.  W.  BLACKWELL  AND  OTHERS. 

Where  a  plaintiff  in  his  bill  makes  direct  charges,  and  calls  upon  the  defend- 
ant by  special  interrogatories  to  make  discoveries  as  to  those  charges,  th<r 
answer,  directly  repponsive  to  such  interrogatories,  becomes  evidence  for 
the  defendant,  .is  well  as  against  him,  notwithstanding  that  a  leplicalion  to 
the  answer  had  been  put  in. 

The  payment  of  interest  upon  a  mortgage  debt  within  ten  years  before  lh« 
filing  of  a  bill  to  foreclose,  repels  the  presumption  of  payment  or  abandon- 
ment arising  from  the  length  of  time. 


IN  THE  SUPREME  COURT. 


Hughes  V.  Blackwell. 


Cause  removed  from  the  Court  of  Equifj^  of  Craven  count  v. 

On  23d  of  August,  1844-,  John  lilackwoll  conveyed  bv  way 
of  mortgage  to  tlic  defendants,  R.  M.  Jihickwell  Zopliar  Mills 
and  John  D.  Abrams,  the  i)roperty  which  is  the  subject  of  this 
controversy,  lying  in  the  town  of  Newbern,  to  secure  a  note  of 
that  date  for  $6000  made  by  the  said  John  Blackwell  and  one 
John  M.  Oliver,  and  on  the  same  day  the  said  John  Black- 
well  executed  another  mortgage  deed  for  the  same  property, 
to  secure  a  debt  of  $1043.34,  due  on  an  account.  On  the  1st 
of  July,  1845,  the  said  Joim  Blackwell  executed  a  mortgage 
deed  to  R.  M.  Blackwell  for  the  same  property  to  secure  a 
note  payable  to  him,  foi- $3500,  bearing  even  date  with  the  said 
mortgage  deed,  and  due  two  years  after  date,  witli  interest 
from  the  date.  In  September,  1856,  the  said  John  Blackwell 
executed  a  deed  of  trust  to  James  C.  Justice,  as  trustee,  to  se- 
cure to  the  jilaintiffs  a  lai'ge  amount  of  debts  due  them,  in 
which  said  deed  are  embraced  the  premises  in  question.  In 
theSjiringof  the  year  1857,  a  bill  of  foreclosure  was  filed  b}^  the 
said  II.  M.  Blackwell  and  Z(>))har  Mills  and  John  D.  Abrams, 
and  the  said  R.  M.  J>lackwell,  to  have  the  said  debts  paid  and 
satisfied  b}'  and  through  the  means  of  the  said  mortgage,  and 
pending  the  proceedings  thereon,  the  bill  in  this  case  was  filed 
by  the  plaintiffs  to  set  aside  the  mortgage  deeds  upon  seve- 
ral grounds,  the  one  of  which  that  has  come  under  the  con- 
sideration of  this  Court,  more  particularly,  is,  that  from  the 
length  of  time  elapsing  between  the  day  the  said  notes  be- 
became  due,  and  the  time  of  bringing  the  bill  to  foreclose, 
the  prcsntnption  of  payment,  satisfaction  or  abandonment 
arose.  The  plaintiffs  anticipating  that  the  defendants  would 
set  up  the  payment  of  a  part  of  the  principal  or  interest  with- 
in the  ten  years,  in  order  to  repel  the  presumjition  otherwise 
arising  upon  the  effiux  of  that  period,  among  divers  other  spe- 
cial interr(^gatories,  asks  the  defendants  as  follows:  "Did 
John  J^lackwell  pay  any  money  for  interest  on  the  said  seve- 
ral notes  and  accounts.  If  so,  when?  How  much?  Who 
was  present?  Where  was  the  payment  made?  How  made? 
Were  they  endorsed  as  credits?     If  so,  in   whose  hand-writ- 


DECEMBER  TEEM,  1860.  75 

Hughes  V.  Blackwell. 

ing?  B}'  whose  authority  and  in  whose  presence?"  To  these 
interrogatories,  the  defendants,  R.  M.  Bhickwcll,  Mills  and 
Abrams,  answer  as  follows  :  "  And  the  said  defendants,  Ro- 
bert M.  Blackwell,  Zophar  Mills  and  John  D.  Abrams,  fur- 
ther answering  the  said  interrogatories  as  to  the  jjajment  of 
interest  on  the  said  several  notes  and  accounts,  say  :  Subse- 
quently to  the  receiving  of  the  said  mortgage  deeds  they  had 
large  dealings  with  said  John  Blackwell  and  John  M.  Oliver, 
consisting  of  sales  of  merchandise  in  the  city  of  New  York, 
belonging  to  the  said  John  Blackwell  and  said  Oliver,  and 
half  3'early,  on  the  first  days  of  July  and  January  in  each 
year,  these  defendants  rendered  accounts  current,  in  which 
were  regularh^  charged  the  interest  on  said  sevei-al  notes  and 
accounts,  and  said  interest  was  thus  regularly  paid  up  to  the 
31st  day  of  December,  1849.  And  they  further  answer,  that 
the  said  interest,  so  paid,  was  not  regulaily  endorsed  as  credit 
on  said  notes  and  account,  but,  according  to  their  best  recol- 
lection, endorsements  were  made  on  said  notes,  showing  that 
the  interest  had  been  paid  previous  to  a  ti-ansfer  of  them  to 
James  M.  Blackwell,  as  trustee,  &c. ;  but  said  notes  not  now 
being  in  their  possession,  or  accessible  by  these  defendants, 
they  cannot  answer  positivel}^  as  to  that  matter;  nor  do  they 
remember  in  whose  hand-writing  said  endorsements  are,  but 
they  believe  they  were  made  by  one  of  these  defendants,  (pro- 
bably by  R.  M.  Blackwell,)  or  by  tlieir  authority." 

On  the  production  of  the  notes  in  evidence,  the  following 
endorsement  aj)peai-s  on  that  for  $6000,  to  wit: 

"Received  the  interest  on  the  within  note  up  to  20th  of 
September,  1854.  R.  M.  Blackwell  «fe  Co." 

And  on  that  for  $3500,  the  following,  to  wir : 

"Cr.  the  within  note  by  seven  hundred  and  thirty-five  dol- 
lars, received  through  John  Blackwell  ct  Co.,  being  three 
years'  interest  on  within  note  up  to  July  1st,  1848,  this  20th 
April,  1848.  li.  M.  P,lackwi.;ll." 

The  main  question  was,  whether  the  facts  disclosed  in  the 
answer  being  thus  specifically  called  out  by  interrogatories, 


76  IN  THE  SUPREME  COURT. 


Hughes  V.  Blackwell. 


did  not  become  evideuce  in   the  cause,  notwitstanding  the 
plaintiffs  replication. 

J.  W.  Bryan  and  Haughton^  for  the  plaintiffs. 
Fowle,  Green^  McEae  and  K  G.  Hayivood^  for  the  defend- 
ants. 

Battlk,  J.  The  debts  alledged  to  be  due  from  tlie  defend- 
ant, Joiin  Blackwell,  to  the  defendants,  R.  M.  Blackwell, 
Mills  and  Abrams,  for  tlie  security  of  which,  the  mortgages, 
which  the  plaintiffs  seek  to  set  aside,  were  given,  are  clearly 
proved  to  be  fair  and  hona  fide  debts,  founded  upon  sufficient 
and  valuable  considerations.  The  plaintiffs  virtually  admit 
the  truth  of  this,  but  they  alledge  that  the  debts  have  been 
paid  and  the  mortgages  satisfied  and  abandoned.  In  support 
of  their  allegations,  they  rely,  mainly,  upon  the  clearly  estab- 
lished fact,  that  after  the  mortgages  in  question  were  execu- 
ted, John  Blackwell,  the  mortgagor,  remained  in  possession 
of  the  mortgaged  premises  for  more  than  ten  years,  and,  as 
the  plaintiffs  state,  without  the  payment  of  any  part  of  the 
principal  or  interest  of  the  debts  to  the  mortgagees,  or  either 
of  them,  and  without  the  acknowledgement  of  the  existence 
of  the  debts  within  that  time.  The  plaintiffs  insist,  therefore, 
upon  the  presumption  of  law,  that  the  debts  have  been  paid, 
and,  consequently,  that  the  mortgages  themselves  have  been 
satisfied  and  abandoned.  If  all  these  allegations  be  true,  the 
legal  consequence  contended  for  by  the  plaintiffs,  is  clearly 
^tablished  bj'  the  authorities  cited  by  their  counsel.  See, 
among  others,  the  cases  of  Lyerly  v.  Wheele7\  3  Ired.  Eq.  599, 
and  Roberts  v.  Welch,  8  Ired.  Eq.  287.  But  the  defendants 
deny  the  statement  that  no  part  of  the  interest,  due  on  these 
debts,  has  been  j^aici,  and,  on  the  conti-arj',  aver  that  it  was 
regularly  paid  eveiy  year,  until  the  year,  1848.  They  state 
the  manner  in  which  the  pajnnents  were  made,  and  produce 
tlie  bonds  mentioned  in  the  pleadings,  of  $6000  and  $3500, 
with  an  endorsement  on  each  in  the  hand-writing  of  R.  M. 
Blackwell,  of  a  certain  amount  of  interest  paid  thereon.     Tlie 


DECEMBER  TERM,  1860.  17 


Hughes  V.  Blackwell. 


account  for  $1943.34,  which  is  one  of  the  debts  mentioned  in, 
and  secured  by,  one  of  tlie  mortgage  deeds  is  also  produced  ; 
upon  which  there  is  no  endorsement  of  the  pa^yment  of  inter- 
est, but  the  defendants  aver  positively  that  the  interest  was 
paid  on  that  also,  as  well  as  on  the  bonds,  up  to  the  time  men- 
tioned above.  If  these  allegations  of  the  defendants  be  true, 
then  the  same  authorities  to  which  we  have  already  referred, 
show  that  the  presumption  for  which  the  plaintiffs  contend  is 
rebutted.  The  question  then  arises :  are  they  sufficiently 
proved,  so  that  the  Court  can  declare  them  to  be  true  ?  The 
defendants  contend  that  they  are  fully  and  sufficiently  proved 
by  their  direct  and  positive  answer  to  special  interrogatories 
put  to  them  by  the  plaintiffs  upon  those  very  points ;  and  that 
the  plaintiffs  have  not  shown  any  thing  to  repel  the  force  of 
the  evidence  thus  furnished  by  the  answer.  In  support  of 
this  position,  the  defendants  rely  upon  2  Stor.  Eq.,  sec.  1528 ; 
2  Fonb.  Eq.  B.  6  ch.  2,  sec.  3,  note  g ;  Pemher  v.  Mathers^  1 
Bro.  Ch.  Cases  52,  and  Chaffin  v.  Chaffin,  2  Dev.  and  Bat.  Eq. 
255.  The  plaintiffs  deny  the  application  of  the  rule  to  the 
present  case,  because,  thc^^  say,  that  the  allegation  of  the  de- 
fendants with  regard  to  the  payment  of  interest  on  the  debts, 
was  denied  by  the  replication,  put  in  to  the  answer  ;  that  such 
allegation  was  a  matter  of  defense  set  up  by  the  defendants 
which  they  were  bound  to  prove  b}^  testimony,  and  that  their 
answer,  being  thus  denied  by  the  replication,  was  not  evidence 
for  them.  For  this,  is  cited  Lyerly  v.  Wheeler^  3  Ired.  Eq. 
170  and  599,  and  it  is  also  supported  by  Gillis  v.  Martin^  2 
Dev.  Eq.  470.  The  plaintiff's  position  would  have  been  com- 
pletely sustained  if  they  had  not  made  statements  in  their 
bill  with  regard  to  the  payment  of  interest  on  the  debts,  and 
called  upon  the  defendants  by  special  interrogatories  to  an- 
swer them.  They  thereby  made  the  defendants  witnesses 
as  to  that  fact,  and  the  answer  was  thus  made  evidence  for  the 
defendants,  as  well  as  against  them.  This  is  shown  by  the  case 
ci  Lylerly  v.  Wheeler,  cited  and  relied  upon  by  the  plaintiffs, 
themselves.  In  that  case,  at  page  601,  the  Court  say  "An 
answer  after  replication  is  not  evidence  for  the  defendant,  ex- 


78  m  THE  SUPEEME  COURT. 

Joyner  v.  Conyers. 

cept  as  it  is  made  so  by  discoveries  called  for  in  the  bill,  and 
which  are  responsive  to  direct  charges  or  special  interrogato- 
ries." The  other  authorities  which  have  been  already  refer- 
red to  as  being  relied  upon  by  the  defendants,  are  to  the  same 
effect.  Had  the  plaintiffs  made  no  charges  in  their  bill  about 
the  non-payment  of  interest,  and  asked  no  questions  upon  the 
subject,  but  simply  stated  the  time  when  the  bonds  were  giv- 
en and  the  mortgages  executed,  and  then  relied  upon  the  lapse 
of  time,  as  affording  a  presumptionof  the  payment  of  the  debts, 
and  a  satisfaction  and  abandonment  of  the  mortgages,  the  de- 
fendants would  have  been  compelled  to  allege  such  payment 
in  their  answer  as  a  fact,  going  to  repel  the  presumption,  and 
and  then,  upon  a  replication  being  put  in,  their  answer  would 
not  have  been  evidence  for  them,  and  they  must  have  failed 
in  their  defense,  unless  they  could  have  produced  proofs  inde- 
pendent of  their  answer.  These  observations  do  not  apply  to 
the  debt  and  mortgage  for  $3500,  because  the  bond  was  pay- 
able two  years  after  its  date,  in  1845,  which  brought  it  within 
the  ten  years  before  the  bill  for  foreclosure,  mentioned  in  the 
pleadings,  was  filed.  As  the  only  object  of  the  bill  was  to  set 
aside  the  mortgages,  and  as  no  account  is  prayed  from  the 
defendant  Justice,  the  trustee,  it  has  failed  of  its  purpose, 
and  must  be  dismissed  with  costs. 

Per  Curiam,  Bill  dismissed. 


WILLIAM  H.  JOYNER,  Adm'r.,  AND  OTHERS  against  THOMAS  H. 
C0NY3RS,  AdmV,  AND  OTHERS. 

Where  an  executrix  procured  an  order  of  court  to  sell  certain  slaves,  in  which 
she  was  willed  a  life  estate,  upon  a  suggestion  that  such  sale  was  necessary  for 
the  payment  of  the  debts  of  her  testator,  and  in  a  short  time  after  the  sale  she 
took  conveyances  from  the  purchasers,  for  the  same  slaves,  without  ever 
having  been  out  of  possession,  it  being  also  made  to  appear  that  there  were 
no  debts  of  the  estate  unpaid  at  the  time  of  the  orders  to  sell,  it  was  held 


DECEMBER  TERM,  1860.  79 

Joyner  v.  Conyers. 

that  the  executrix  took  nothing  by  her  purchase,  and  should  be  declared  a 
trustee  for  the  remaindermen. 
Damages  assessed  against  a  railroad  company,  on  the  condemnation  of  land 
to  the  use  of  the  company,  belong  to  the   tenant  for  life  and  remainder- 
man, in  proportion  to  the  period  for  which  each  suffers  the  incumbrance. 

Cause  removed  from  the  Court  of  Equity  of  Franklin 
county. 

Tiiomas  Y.  Ricliards,  who  died  in  1831,  by  his  will,  devis- 
ed and  bequeathed  as  follows  :  "  I  lend  to  my  sister,  Polly 
Richards,  the  tract  of  land  whereon  I  now  live,  and  six  ne- 
groes, named  Sam,  Jerry,  Amy,  Ilinton,  Lucy  and  Lavinth, 
togetlier  with  my  stock  of  every  description,  during  her  life- 
time, and  after  her  death,  I  give  to  my  nephew,  John  W. 
Womath,  live  hundred  dollars,  to  be  raised  out  of  the  estate, 
and  the  balance  of  which  estate,  I  will  and  bequeath  to  the 
bodily  heirs  of  my  live  sisters,  that  is,  Frances  Duke,  (who  is 
now  dead)  Martha  Bowers,  Rebecca  IlefHin,  Nancy  Black- 
nail  and  Sally  Conyers,  to  be  equally  divided  among  said 
heirs,  with  this  exception,  that  I  give  and  bequeath  to  my 
nephews,  Thomas  Bowers  and  Thomas  Conyers,  one  horse 
apiece,  M'orth  seventy-five  dollars,  more  than  tiie  rest  of  said 
heirs,  forever."  Polly  Richai-ds  was  appointed  the  sole  ex- 
ecutrix in  the  said  will,  and  she  qualified  and  took  upon  her- 
self the  burden  of  executing  the  trusts  therein.  By  a  former 
suit,  in  equity,  between  the  plaintift',  W.  H,  Joyner,  adminis- 
trator de  bonis  non^  of  the  estate  of  Thomas  Y.  Richards,  and 
the  other  persons  who  are  parties  to  this  suit,  a  decree  was 
passed  declaring  that  all  the  children  of  the  five  sisters  of  the 
testator,  after  tlie  death  of  Polly  Richards,  and  after  deduct- 
ing a  legacy  of  $500  to  John  Yr^omath,  were  entitled  to  have 
the  said  property  equally  divided  among  them  '■''jyer  capita^'' 
with  the  exception  of  the  two  horses  to  Thomas  H.  Conyers 
and  Thomas  Bowers. 

The  said  Polly  Ricliards  entered  upon  the  land  on  the  death 
of  her  brother,  the  testator,  and  took  charge  of  the  slaves  and 
other  property.  The  perishable  p/operty  was  sold  by  her  for 
payment  of  debts,  and  afterwards,  under  a  special  order  of  the 


80  m  THE  SUPEEME  COUKT. 

Joyner  v.  Conyers. 

County  Court,  at  March  Term,  1832,  of  Franklin  County, 
on  a  suggestion  that  a  further  sale  of  property  was  neces- 
sary to  pay  debts,  a  girl,  by  the  name  of  Lucy,  (named 
in  said  order)  was  sold  to  one  Archibald  Yarbrough  for  $134, 
and  afterwards,  another  special  order  of  the  Court  was  ob- 
tained at  March  Term,  1834,  upon  a  like  snggestion  for  the 
gale  of  another  slave,  by  the  name  of  Peggy,  which  slave  was 
sold  accordingly  to  Sarah  Conyers,  for  $130.  Both  of  tiiese 
negroes  remained  with  the  executrix,  and  possession  of  them 
was  never  demanded  of  her,  nor  taken  b}'  the  purchasers, 
but  each  of  them,  shortly  after  these  sales,  formally  executed 
titles  to  her,  the  said  Polly  Richards.  Since  tiien,  she  claim- 
ed the  said  slaves,  as  her  own  up  to  her  death,  which  took 
place  in  the  year  1855. 

The  plaintiffs,  who  are  the  remaindermen,  allege  that  nei- 
ther of  these  sales  of  Lucy  or  Peggy,  was  demanded  by  the 
condition  of  the  estate  of  Thomas  Richards,  for  that  the  pro- 
perty first  sold,  by  her,  was  sufficient  to  pay  all  the  debts  of  the 
estate,  and  they  charge  that  such  sales  were  mere  devices, 
concerted  with  the  said  Aichibald  Yarbrough  and  Sarah 
Conyers,  whereby  it  was  agreed  that  they  should  respectively 
bid  off  the  negroes  offered  for  sale,  and  should  each  convey 
the  same  back  to  the  said  Polly  Richards,  by  which  devices 
ehe  attempted  to  acquire  a  full  estate  in  the  said  female  slaves, 
in  which,  before,  she  had  only  a  life-interest. 

The  bill  further  alleges,  that  the  sura  of  $150  was  recovered 
for  damages  to  the  land,  in  question,  from  the  Raleigh  and  Gas- 
ton Railroad  company,  the  track  of  said  road  being  located  up- 
on a  part  of  the  land  devised  to  the  said  Polly  for  life,  as  above 
Btated,  and  that  she  received  and  used  the  whole  amount  of 
*aid  damages,  and  the  plaintiffs  insist  that  they  are  entitled  to 
a  share  of  that  sum,  in  proportion  to  the  amount  of  damage 
done  to  their  estate  in  remainder. 

The  bill  sets  forth,  that  the  said  Polly  Richards  cut  down 
and  sold  timber  to  the  Raleigh  and  Gaston  Railroad  compa- 
ny, which  was  not  merely  taken  off  in  the  necessary  course 


DECEMBER  TERM,  1860.  81 

Joyner  v.  Conyers. 

of  working  the  land,  bnt  that  the  timher  was  cut  for  the  ex- 
press purpose  of  being  sold;  and  amounted  to  waste. 

The  prayer  of  tiie  bill  is,  tliat  the  said  slaves,  Luc)^  and 
Peggj,  and  their  increase,  may  be  decreed  to  be  delivered 
up  to  the  plaintilf,  W.  II.  Joyner,  the  administrator  de  honis 
noil  of  TJiomas  Y.  Yarbrough,  that  the  same,  with  the  hires 
of  the  said  slaves,  since  the  death  of  Polly  Richards,  may  be 
divided  among  the  plaintiffs,  according  to  the  provisons  of  the 
will,  and  for  that  purpose,  that  a  sale  of  the  said  slaves  shall 
be  ordered,  and  an  account  of  the  hires.  The  bill  further 
])ra3's  jfor  a  proportionate  share  of  the  land-damages  and  a 
comjiensation  for  damage  and  waste  done  to  their  estate  in 
remainder. 

The  answers  being  by  persons  in  their  representative  cha- 
racters, do  not  affect  the  questions  involved. 

At  December  Term,  1859,  this  Court  ordered  an  account 
of  the  estate  of  Thomas  Y.  Richards,  in  the  hands  of  his  ex- 
ecutrix, Polly  Richards,  to  be  taken  by  the  clerk  of  this 
Court,  and  at  the  present  term,  Mr.  Freeman  reported  "  tiiat 
on  the  21st  of  March,  1832,  when  the  girl,  Lucy,  was  sold, 
the  executrix  had  assets  more  than  sufficient  to  pay  the  debts 
of  her  testator,  together  with  all  the  expenses  attending  the 
same,  and  also,  that  on  the  Sth  of  September,  1834,  when  the 
girl,  Peggy,  was  sold,  siic  had  more  than  sufficient  to  pay 
the  debts  of  her  testator." 

There  was  replication  to  the  answer  and  proof  taken,  and 
tlie  cause  was  set  down  for  hearing  on  the  bill,  answer,  exhi- 
bits, and  former  orders,  and  sent  to  this  Court, 

./.  J.  Davis  and   IF.  F.  Green,  for  the  plaintiffs. 
Eaton,  for  the  defendants. 

Manly,  J.  "When  this  cause  was  under  the  consideration 
of  the  Court  at  December  Term,  1859,  the  sale  by  the  execu- 
trix, Polly  Richards,  of  the  girl  slaves,  Lucy  and  Peggy,  and 
the  buying  them  back  again,  in  a  short  time  afterwaftls,  was 
of  so  suspicious  a  character,  that  an  account  was  ordered  of 

6 


82  IN  THE  SUPREME  COURT. 

Joyner  v.  Conyers. 

the  assets  of  the  estate,  that  we  might  see  whether  the  sale 
was  necessary  to  pay  debts.  The  report  of  the  clerk,  at  this 
term,  negatives  the  supposition  that  it  could  have  been  for 
the  purpose  of  raising  assets  to  pay  debts.  The  assets,  in 
hand,  wei'e  already'-  abundantly  sufficient  for  that  purpose. 
It  could  have  been,  therefore,  only  for  the  purpose  of  chang- 
ing the  title.  As  the  executrix  was  to  have  a  life-estate  in 
these  girls,  with  an  interest  in  remainder  limited  over,  she 
had  a  motive  for  desiring  to  change  the  estate  which  she  held. 
No  form  of  a  sale,  without  necessity,  nnder  the  influence  of 
such  a  motive,  conld  effect  her  object;  the  estate  remained 
the  same. 

The  facts  of  the  case,  and  especially  the  significant  one  dis- 
closed by  the  report  of  the  clerk,  constrain  us  to  hold  the  sale 
of  both  the  slaves,  Lucy  and  Peggy,  inoperative  and  void. 
They,  and  their  offspring,  must  be  accounted  for  and  surren- 
dered to  the  administrator  de  honis  non  of  Thomas  Y.  Rich- 
ards, to  be  accounted  for,  by  him,  with  the  persons  entitled 
in  remainder. 

There  must,  also,  be  an  account  of  the  hii'es  of  the  slaves 
since  the  death  of  Polly  Richards. 

AVith  respect  to  the  damages  recovered  by  Polly  Richards, 
the  tenant  for  life  of  the  land,  from  the  Raleigh  and  Gaston 
Railroad  company,  we  are  of  opinion  the  plaintiffs  are  also 
entitled  to  an  account.  By  the  condemnation  of  the  land, 
under  the  provisions  of  the  charter  of  the  road,  the  company 
acquired  an  easement,  in  the  same,  for  99  years.  The  $150 
assessed  as  damages,  were  not  assessed,  we  take  it,  for  the  in- 
jury done  alone  to  tlie  life-estate,  but  to  the  estate  in  remain- 
der also.  The  persons,  therefore,  in  remainder,  are  entitled 
to  a  part  of  this  fund,  viz.,  such  an  amount  of  the  same  as 
will  be  proportional  to  the  period  of  time  for  which  ihey  suffer 
the  incumbrance.  This,  we  mean,  is  the  general  rule  appli- 
cable to  cases  of  this  sort.  There  may  be  special  cases  in 
which  other  elements  will  properly  enter  into  the  calculation; 
as,  for  ^stance :  The  special  location  of  the  road  might  affect, 
materially,  the  calculation  of  relative  damage.  If  it  ran  through 


DECEMBER  TERM,  1860. 


Clark  V.  Lawrence. 


the  yard  of  the  tenant  for  life,  the  rule  would  not  do  the  tenant 
full  justice,  while,  if  it  went  through  a  remote  woodland,  it 
would  do  more  justice.  It  is  referred  to  the  clerk  to  enquire 
and  report  to  what  part  of  this  sum  of  $150,  the  persons  in 
remainder  are  entitled. 

It  is  also  alleged,  that  there  was  a  waste  of  the  land  by  the 
tenant  for  life,  by  cutting  timber,  not  needed  for  the  estate, 
but  which  was  cut  for  market.  The  clerk  may  make  enquiry 
into  this  matter  also  and  report  results. 

Per  Curiam.  Decree  accordingly. 


HENRY  S.  CLARK  against  DAVID  LAWRENCE,  Ti-ustee. 

Whenever  it  can  be  clearly  proved  that  a  place  of  sepulture  is  so  situated  that  the 
burial  of  the  dead  there,  will  endanger  life  or  health,  either  by  corrupting 
the  surrounding  atmosphere,  or  the  water  of  wells  or  springs,  a  court  of 
equity  will  grant  injunctive  relief 

Where  a  bill  was  filed,  praying  to  have  a  nuisance  abated,  and  for  an  injunc- 
tion to  restrain  the  defendant  from  erecting  it  in  future,  and  the  act  com- 
plained of  was  of  the  character  of  a  nuisance,  but  the  testimony  was  not 
sufficient  to  satisfy  the  Court  that  it  amounted  to  a  nuisance  in  the  particu- 
lar case,  the  Court  directed  an  issue  to  be  tried  in  the  superior  court,  to  de- 
termine the  fact. 

Causk  removed  from  the  Court  of  Equity  of  Pitt  county. 

The  bill  is  filed  to  obtain  an  injunction  to  restrain  the  de- 
fendant, who  is  the  trustee  of  the  Baptist  congregation  in  the 
town  of  (xrecnville,  from  permitting  the  church  yard  to  be 
used  as  a  cemetery. 

The  lot  in  question,  adjoins  the  lot  upon  ■\vhicli  the  plaintiff's 
dwelling  house  is  situated,  and  was  purchased  b}'  the  Baptist 
■congregation  about  the  year  1827,  the  plaintiff's  lot  being  at 
the  time  lyoccupied  and  unimproved— there  being  no  house 


81^  IJSr  THE  SUPREME  COURT. 

Clark  V.  Lawrence. 

upon  it  until  the  year  1845.  At  the  time  the  plaintiff  pur- 
chased his  lotj  which  was  in  the  year  1850,  tiiere  were  only 
two  graves  on  the  lot  in  question,  and  these  were  in  the  part 
most  remote  from  his  dwelling. 

In  December,  1857,  there  were  two  burials  of  dead  bodies 
on  this  lot,  about  three  feet  from  the  boundary  line  of  the 
plaintifl:''s  lot,  and  about  thirty-five  feet  from  one  well,  and 
seventy-two  from  another,  from  which  he  supplied  himself 
and  family  with  water.  These  dead  bodies  were  deposited  in 
wooden  cofiins,  and  buried  to  a  depth  of  three  or  four  feet, 
and  in  one  case  the  grave  was  lined  at  the  bottom  and  up  the 
sides  with  brick  and  cemented.  The  soil  was  of  a  mixture  of 
clay  and  sand,  and  the  ground  sloped  from  the  graves  towards 
the  plaintiff's  wells,  which,  together  with  his  dwelling  house 
were  situated  in  a  northerly  direction  from  the  grave  yard. — 
The  bill  alledged  that  this  situation  exposed  himself  and  fami- 
ly to  the  efSuvia  arising  from  decaying  bodies,  and  which  the 
south  winds  that  generally  prevail  in  summci",  will  bring  di- 
rectly into  his  house,  by  which  the  health  of  plaintiff's  family 
and  the  value  of  his  lot  will  be  irreparably  injured.  The  bill 
further  alleges  that  the  quality  of  the  water  in  plaintiff's  wells, 
has  been  so  impaired  by  their  close  proximity  to  these  graves, 
as  to  render  them  unfit  for  use.  This  fact  is  denied  b}-  the  an- 
swer. There  was  evidence  to  show  that  the  water  in  the 
plaintiff's  wells  had  formerly  been  good,  but  that  it  is  now 
very  bad. 

There  was  much  other  testimony,  which,  in  the  view  taken 
by  the  Court  of  this  case,  it  is  not  deemed  necessary  to  set 
out. 

The  cause  being  set  down  for  liearing  upon  the  bill,  answer, 
exhibits  and  proofs,  was  transferred  to  this  Court  by  consent. 

Hodman^  Shav)  and  J.  TL.  Bryan,  for  the  plaintiff. 
Donnell,  for  the  defendant. 

Battle,  J.  The  jurisdiction  of  the  court  of  equity  to  re- 
strain by  an  injunction,  the  erection  or  continuance  of  a  nuis- 

9 


DECEMBER  TERM,  1860. 


Clark  v..  Lawrenca 


ance,  eitlier  public  or  private,  which  is  likely  to  produce  irre- 
parable mischief,  is  well  established.     It  is  equally  well  set- 
tled that  the  destruction  of,  or  injury  to  the  health  of  the  in- 
habitants of  a  city  or  town,  or  of  an  individual  and  his  fami- 
ly, is  deemed  a  mischief  of  an  irreparable  character.     In  the 
case  of  a  city  or  town,  where  the  apprehended  injury  is  clear- 
ly proved,  the  court  will  not  hesitate  to  grant  the  injunction, 
even  against  the  erection  or  continuance  of  a,  water  gristmill' 
though  such  mills  are  generally  deemed  of  public  benefit,' 
and  the  building  of  them  has  been  encouraged  and  protect- 
ed by  our  statute  law.     See  Attorney   General  v.  Hunter, 
1.  Dev.  Eq.  12 ;  Attorney  General  v.  Blount,  4  Hawks'  384. 
In  the^case  of  a  private  nuisance,  caused  by  a  mill  pond,  the 
court  will  interfere  indeed,  but  with  more  caution  and  he'sita- 
tion,  both  because  the  public  benefit  arising  from  the  mill  is 
opposed  to  the  private  interest  of  an  individual,  and  because, 
where  the  land  of  the  individual  is  overflowed,  as  in  most  ca- 
ses it  will  be,  and  the  damages  assessed  by  a  jury  therefor, 
exceed  twenty  dollars,  the  party  may,  at  law,  by  repeated  ac- 
tions, compel  an   abatement  of  the  nuisance ;  Fason  v.  Per- 
Uns,  2  Dev.  Eq.  38 ;  Barnes  v.  Calhoun,  2  Ired.  Eq.  199.— 
See  also,  Sjjencer  v.  London  and  Birmingham  R.  E  Co    8 
Simons,  193.  ' 

The  same  principle  which  would  excite  into  activity  there- 
straining  power  of  the  court,  where  the  health  of  the  com- 
munity, or  of  an  individual  member  of  it,  is  in  danger  of  be- 
ing destroyed  or  impaired  by  a  mill  pond,  will  be  equally 
ready  to  interpose  its  protection,  when  a  similar  danger  is 
threatened  from  the  establishment  of  a  cemetery  in  a  ctty  or 
town,  or  very  near  the  dwelling  house  of  a  private  person.— 
This,  we  think,  was  recognised  in  the  case  of  Ellison  v.  The 
Commissioners  of  Washington,  5  Jones'  Eq.  71,  thongh  the 
decision  in  that  case,  on  account  of  its  peculiar  circumstan- 
ces, was  averse  to  the  application  for  the  injunction.  In  ca- 
ses of  this  kind,  the  plaintiff  will  not  have  to  encounter  the 
difficulty  that  a  place  for  the  burial  of  the  dead,  within  the 
limits  of  a  city  or  town,  or  near  the  residence  of  a  private 


IN  THE  SUFEEME  COUKT. 


Clark  V.  Lawrence. 


person  in  the  countiy,  is  considered  a  matter  of  public  weal. 
On  the  contrary',  the  public  sentiment  is  already,  or  is  becom- 
ing to  be  in  favor  of  more  secluded  spots,  where  we,  like  the 
Patriarch  of  old,  "  may  bury  our  dead  out  of  our  sight." — 
Whenever,  then,  it  can  be  clearly  proved  that  a  place  of  sep- 
ulture is  so  situated,  that  the  burial  of  the  dead  there,  will  en- 
danger life  or  health,  either  by  corrupting  the  surrounding  at- 
mosphere, or  the  water  of  wells  or  springs,  the  court  will  grant 
its  injunctive  relief  upon  the  grouud  that  the  act  will  be  a 
nuisance  of  a  kind  likely  to  produce  irreparable  mischief,  and 
one  which  cannot  be  adequately  redressed  by  an  action  at 
law.  In  the  present  case,  the  evidence  upon  which  the  cause 
has  been  brought  before  us,  for  a  hearing,  does  not  so  clearly 
satisfy  us  of  the  fact  of  a  nuisance,  either  existing  or  appre- 
hended, as  will  justify  us  in  granting  an  injunction  without 
further  enquiry.  Under  such  circumstances,  the  usual  course 
is  to  require  the  party  to  establish  liis  allegations  of  a  nuisance 
by  an  action  of  law ;  Simpscrii  v.  Justice,  S  Ired.  Eq.  115,  and 
the  cases  there  cited.  That  course  would  be  most  appropri- 
ate, and  would  be  adopted  by  us,  if,  as  was  said  in  the  Attor- 
ney General  v.  Hunter,  uhi  supra,  "  the  right  infringed  were 
of  a  doubtful  character,  as  the  right  of  view  over  another's 
ground."  But,  in  a  case  like  the  present,  where  the  thing 
complained  of  is  certainly  of  the  character  of  a  nuisance,  and 
the  only  doubt  is,  whether  tlie  testimony  proves  that  it  is  so, 
in  the  particular  case,  we  think  that  we  can  accomplish  the 
same  purpose  in  a  manner  more  convenient  to  the  parties,  and 
quite  as  satisfactory  to  ourselves,  by  directing  an  issue  to  be 
tried  in  the  Superior  Court  of  law  for  Pitt  county,  whether  the 
burial  of  the  dead,  in  the  church  lot  mentioned  in  the  plead- 
ings, has  produced,- or,  if  continued,  is  likely  to  produce  sick- 
ness in  the  plaintiff's  family,  or  to  impair  their  comfort,  either 
by  corrupting  the  air  or  the  water  in  his  wells.  Let  an  order 
be  drawn  accordingly. 

Pee  Curiam,  Decree  accordingly. 


DECEMBER  TERM,  1860.  87 


Eountree  v.  McKay. 


JONATHAN  D.  ROUNTREE  against  WILLIAM  McL.  McKAY,  Trustee, 
AND  OTHERS. 

Where  a,  bill  was  filed,  by  a  judgment  creditor,  against  a  trustor  and  his  trus- 
tee, to  have  satisfaction  of  his  judgment  out  of  the  resulting  interest  of  the 
trustor,  alleging  that  the  debtor  had  not  a  legal  title  to  any  property,  what- 
soever, and  that  the  interest,  sought  to  be  subjected,  was  one,  which  only 
could  be  reached  in  a  court  of  equity,  it  was  held  not  to  be  necessary  to 
state  that  the  plaintiff  had  taken  out  s,fi.  fa.  on  his  judgment,  and  that  the 
same  was  returned  nulla  bona. 

Where  a  bill  was  filed  by  a  judgment  creditor,  to  subject  the  resulting  inter- 
est of  the  trustor  in  personalty,  and  it  appeared  that  other  judgment  cred- 
itors, as  well  as  plaintiff,  had  levied  y?.  fas.  on  the  trustor's  interest  in  the 
land  conveyed  in  the  deed  of  trust,  it  was  held  that  such  other  judgment 
creditors  were  necessary  parties  to  the  bill. 

Where  an  objection,  for  the  want  of  parties,  was  taken  ore  temis,  for  the  first 
time,  on  the  argnment  of  the  demurrer  in  this  Court,  which  was  deemed 
valid,  the  Court  refused,  nevertheless,  to  dismiss  the  bill,  but  remanded  it 
without  costs  to  the  Court  below,  that  it  might  be  amended  as  to  parties. 

This  was  an  appeal  from  a  decree  of  the  Court  of  Equity  of 
Wilson  county,  over-ruling  a  demurrer. 

The  plaintiff,  Jonathan  Rountree,  recovered  against  John 
Waddill,  jr.,  and  Thomas  Waddill,  a  judgment  in  this  Court, 
at  its  December  Term,  1859,  for  $7587,  with  interest  and 
costs.  The  plaintiff  alleges,  in  his  bill,  that  defendants  have 
no  legal  title  to  any  property  whatever,  out  of  which  their 
judgment  could  be  satisfied,  but  that  they  have  an  equitable 
interest  in  a  very  large  property,  which  they  had  conveyed 
to  the  defendants,  McKay  and  Fuller,  as  trustees,  to  secure 
otlier  creditors ;  that  said  property  consists  of  land  and  per- 
sonal estate  ;  that  the  deed  of  trust  has  been  standing  ever 
since,  February,  1858,  during  which  tinxe  the  trustors,  the 
Messrs.  Waddill,  have  had  the  possession  and  use  of  the  pro- 
property,  and  by  such  use,  have  paid  off  a  considerable  por- 
tion, at  least  one  half,  of  the  debts  secured,  and  that  if  it  had 
not  been  for  the  plaintiff's  judgment,  they  do  not  believe  that 
there  would  have  been  any  sale  of  this  property,  but  that 
since  the  rendition  of  his  said  judgment,  the  trustees   have 


m  THE  SUPREME  COURT. 


Rountree  v.  McKay. 


proceeded  to  advertise  a  sale  of  all  the  property  conve3'ed  to 
them.  The  bill  alleges  further,  that  a  M'rit  oi  fieri  faoias  on 
the  plaintiff's  jiuignient  has  been  levied  on  the  trustors' in- 
terest in  the  real  estate  conveyed,  and  that  several  other  judg- 
ment creditors  liave  also  levied  executions  on  this  resulting 
interest  in  the  real  estate,  and  he  does  not  believe  it  will  sell 
for  enough  to  satisfy  the  plainritf's  judgment. 

The  prayer  is,  that  the  plaintiff's  judgment  may  be  satis- 
fied out  of  the  resulting  interest  of  the  trustor  in  the  personal 
estate,  and  to  that  end,  that  the  defendants  may  set  forth  the 
several  debts,  mentioned  in  the  deed  of  trust,  which  have 
been  satisfied,  and  the  names  and  amounts  of  those  not  satis- 
lied,  also  the  notes  and  accounts  conveyed  to  them  in  the  said 
deed  of  trust,  and  a  detailed  statement  of  all  the  assets  now 
on  hand.  Tlie  prayer  is  further,  that  the  trustees  may  be  de- 
creed at  once  to  make  sale  of  the  property  and  pay  off"  the 
debs  secured,  and  that  any  balance  that  may  be  in  their  hands, 
may  be  applied  to  the  pa3'ment  of  the  plaintiti''s  judgment. 

The  defendants  demurred,  for  the  cause  :  that  the  bill  does 
not  set  forth  that  the  plaintiff"  had  taken  out  o,  fieri  facias  and 
had  the  same  returned  by  the  sheriff  mdla  hona.  On  the  ar- 
gument here,  the  defendants'  counsel  assigned,  ore  temis,  a 
further  ground  of  demurrer,  that  the  creditors  mentioned  in 
the  bill,  as  having  had  their  executions  levied  on  the  trustor's 
interest  in  the  real  property,  conveyed  in  trust,  were  not 
made  parties  to  the  bill. 

The  Court  below  over-ruled  the  demurrer  and  ordered  the 
defendants  to  answer,  from  which  ruling,  the  defendants  ap- 
pealed. 

St/rong  and  J.  11.  Bryan^  for  the  plaintiff. 
Neill  McKay  and  Fowle^  for  the  defendants. 

Battle,  J.  The  particular  ground  on  which  the  demurrer 
is  based,  to  wit,  that  the  plaintiff'  has  not  set  forth,  in  his  bill, 
that  he  has  issued  an  execution  against  the  defendants  to  his 
judgment  at  law,  and  had  a  return  by  the  sheriff'  of  nulla 


DECEMBER  TERM,  1860. 


Ronntree  v.  McKay. 


hona^  cannot  be  sustained.  The  bill  alleges,  expressly,  that 
these  defendants  had  not  the  legal  title  to  any  property  what- 
ever, and  the  only  interest  which  they  owned,  which  conld 
be  made  liable  to  the  satisfaction  of  the  plaintift''s  debt,  was 
one,  which  conld  be  reached  onl}^  in  a  court  of  equity.  This 
is  sufRcient,  without  the  allegation  of  the  fact,  for  the  want  of 
which,  the  defendants  have  demurred,  as  is  clearly  shown  by 
the  case  of  Tahh  cfc  Co.  v.   Williams.,  4  Jones'  Eq.  352. 

If  the  objection,  insisted  upon  in  the  demurrer,  were  the 
only  one  which  could  be  taken  to  the  bill,  M-e  should,  of  course, 
over-rule  it,  and  at  once  i-equire  the  defendants  to  answer. 
But  their  counsel  have  insisted  here,  for  the  first  time,  by  a 
demurrer  ore  tc?ius,  u})on  a  defect  in  the  bill  for  the  want  of 
parties,  in  that  the  creditors,  who,  the  bill  states,  had  obtain- 
ed judgments  against  the  defendants,  J.  and  T.  Waddill,  and 
caused  executions  thereon  to  be  levied  on  their  resulting  in- 
terest in  the  real  estate  conveyed  to  the  other  defendants,  as 
trustees,  are  necessary  parties,  in  taking  the  account  prayed 
for  in  the  bill.  These  creditors,  we  think,  are  necessary  par- 
ties, because  they  are  interested  in  having  the  creditors,  se- 
cured by  the  deed  of  trust,  paid  out  of  the  proceeds  of  the 
personal  estate,  so  as  to  leave  a  larger  surplus  of  the  real  es- 
tate, or  its  proceeds,  for  the  satisfaction  of  their  executions, 
while  it  may  be  to  the  interest  of  the  plaintiff  to  have  the 
trust-creditors  paid  out  of  the  real  estate,  in  order  to  leave  a 
larger  surplus  of  personal  property  to  satisfy  his  debt,  and  the 
defendants  are  all  interested  in  having  the  conflicting  claims 
of  the  plaintiff,  and  the  other  judgment-creditors  adjusted  in 
one  suit. 

Tlie  demurrer  ore  teiiufi  for  the  want  of  parties,  must,  then, 
be  sustained  ;  but  the  effect  will  not  be  to  have  the  bill  dis- 
missed, but  to  have  it  remanded,  without  costs,  in  order  that 
the  plaintiff  may  amend  his  bill,  by  making  the  necessary 
parties ;  see  Caldioell  v.  Blacl'wood^  1  Jones'  Eq.  274.  An 
order,  to  this  effect,  may  be  drawn  accordingly. 

Per  Curiam,  Cause  remanded. 


IN  THE  SUPREME  COURT. 


Hunt  V.  Frazier. 


JAMES  HUNT  AND  WIFE  AND  OTHERS  afjainst  CHARLES 
FRAZIER  AND  OTHERS. 

Courts  of  equity  do  not  assume  jurisdiction  to  reform  deeds  unless  the  trans- 
action be  based  on  a  valuable  or  meritorious  consideration. 

Where  A  had  loaned  B,  his  brother,  a  sum  of  money,  and  taken  a  convey- 
ance of  a  tract  of  land,  and  some  slaves  as  security  for  the  repayment,  and 
the  two  brothers  came  to  an  agreement  that  A  should  convey  the  property 
to  D  on  certain  trusts,  to  let  B's  wife  and  children  live  upon  the  land  and 
enjoy  it  for  the  liffe  of  the  mother,  and  then  to  be  sold  for  the  payment  of 
A's  debts,  and  the  overplus  to  be  paid  to  her  children,  it  was  held  that  the 
deed  of  trust  was  founded  on  a  valuable  consideration,  and  as  such  the 
court's  power  to  reform  its  defects,  could  be  properly  exercised. 

Cause  removed  from  the  Court  of  Equit}"  of  Granville 
county. 

The  bill  is  filed  to  obtain  a  decree  for  reforming  a  certain 
deed,  from  one  William  Hunt  to  Fortius  Moore,  which  deed 
is  in  the  following  words : 

"This  indenture,  made  and  entered  into  this  27th  day  of 
November,  1S38,  between  William  Hunt,  of  the  county  of 
Granville,  and  State  of  North  Carolina,  of  the  one  part,  and 
Fortius  Moore  of  the  county  of  Ferson,  and  State  aforesaid, 
of  the  other  part,  witnessoth,  that  for  and  in  consideration  of 
the  sum  of  one  thousand  dollars  to  him  secured  to  be  paid, 
the  said  William  Hunt,  doth  hereby  bargain  and  sell  to  the 
said  Fortius  Moore,  a  certain  parcel  or  tract  of  land  lying  in 
the  county  of  Granville,  and  State  aforesaid,  and  on  the  wa- 
ters of  Grassy  creek ;  bounded  as  follows :  (setting  out  the 
boundaries,)  containing  two  hundred  and  twenty-four  acres, 
more  or  less.  Also,  the  following  negroes,  to  wit,  Margaret, 
otherwise  called  Feggy,  about  the  age  of  thirty-six  or  seven, 
and  two  children,  Rody  of  the  age  of  six  or  seven,  and  Charles, 
of  the  age  of  five,  the  title  of  the  aforesaid  land  and  negroes, 
I,  the  said  William  Hunt,  doth  hereby  warrant  and  defend  to 
the  said  Fortius  Moore,  his  heirs  and  assigns  forever,  in  trust 
for  the  following  purposes  to  wit,  that  the  said  Fortius  Moore 
is  to  manage  said  land  and  negroes  in  the  best  manner  that 


DECEMBER  TERM,  1860.  U 


Hunt  V.  Frazier. 


he  c<an,for  the  benefit  of  Lucinda  Hunt  and  her  children,  and 
is  at  all  times  to  furnish  said  Lucinda  Hunt  out  of  the  proceeds 
of  said  land  and  negroes,  if  sufficient,  a  comfortable  support 
and  the  balance,  if  any,  to  pay  over  to  the  said  William  Hunt, 
until  the  above  named  sum  of  one  thousand  dollars  with  the 
interest  thereon,  shall  have  been  paid,  and  the  said  William 
Hunt,  doth  further  retain  to  himself  the  right  of  tending  such 
part  of  the  plantation  as  may  not  be  wanted  for  cultivation  by 
the  family,  and  after  the  said  sum  of  one  thousand  dollars 
with  the  interest  thereon  shall  have  been  paid,  then  the  said 
privilege  shall  cease,  then  the  said  William  Hunt  doth  here- 
by warrant  and  defend  the  said  title  of  the  said  land  and  ne- 
groes and  their  increase  to  the  said  Moore  in  trust  for  the  ben- 
efit of  the  said  Lucinda  Hunt  and  her  children.  In  witness 
whereof,  I  have  set  my  hand  and  seal,  this  date  above  written. 

William  Hunt,  [/Seal.] 
In  presence  of 

William  B.  Frasiee, 
Dennis  O'B.  Frazier. 
At  the  same  time,  AVilliam  Hunt  took  from  the  trustee, 
Moore,  the  following  bond  : 

"  Know  all  men  by  these  presents,  that  I,  Fortius  Moore,  of 
the  county  of  Person,  and  State  of  North  Carolina,  (trustee 
for  Lucinda  Hunt,)  am  held  and  firmly  bound  unto  William 
Hunt,  of  the  county  of  Granville,  and  State  aforesaid,  in  the 
sum  of  one  thousand  dollars,  which  payment,  well  and  truly 
to  be  made,  I  bind  myself,  my  heirs  and  assigns,  in  witness 
whereof,  I  have  set  my  hand  and  seal,  this  27th  day  of  No- 
vember, 1888. 

The  condition  of  the  above  obligation  is  such,  that  where- 
as, the  above  named  William  Hunt,  hath  tliis  day  conveyed 
to  the  above  bound  Fortius  Moore,  a  certain  tract  of  land  and 
three  negroes,  as  named  in  the  deed  and  bill  of  sale,  (in  trust 
for  tiie  benefit  of  Lucinda  Hunt  and  her  children,)  the  pro- 
ceeds of  which  is  to  be  applied  to  their  use,  so  as  to  furnish 
them  with  a  comfortable  support,  and  the  balance,  if  any,  to 
pay  the  said  William  Hunt,  in  each  and  every  year,  until  tho 


92  IN  THE  SUPEEME  COURT. 

Hunt  V.  Frazier. 

sum  of  one  thousand  doUavs,  with  the  interest  thereon  shall 
have  been  paid,  then  the  above  obligation  shall  be  void,  oth- 
erwise to  remain  in  full  force  and  effect.  Given  under  my 
hand  and  seal,  the  date  above  written. 

Fortius  Moore,  [/Seal.'] 

The  plaintiffs  in  this  bill,  are  the  heirs-at-la\v,  children  and 
grand-children  of  Lucinda  Hunt,  and  the  defendants  are  the 
heirs-at-law  of  Fortius  Moore  and  William  Hunt,  and  tlie 
prayer  of  the  bill  is  to  have  the  deed  from  William  Hunt  to 
Moore,  reformed  by  insertiug  words  of  inheritance  which  it 
alledges  were  omitted  through  the  ignorance  and  want  of  skill 
in  the  draftsman.  The  plaintiffs  have  continued  in  the  pos- 
session of  the  lands  and  slaves  in  question  from  the  date  of 
this  deed  down  to  the  present  time.  Fortius  Moore  died  in 
tlie  year  184:9,  and  William  Hunt  in  the  year  1853,  and  there 
was  no  evidence  that  he  ever  claimed  the  land,  after  the  death 
of  Moore. 

William  Hunt  and  James  Hunt,  the  husband  of  Lucinda 
Hunt,  were  brothers,  and  at  the  time  the  above  recited  deed 
was  made,  William  Hunt  was  unmarried,  and  about  fift}'' 
years  of  age.  The  property  conveyed  in  the  deed  had  origi- 
nally belonged  to  James  Hunt,  and  had  been  conveyed  to  the 
said  William,  together  with  tlie  slav^es,  as  security  for  the  said 
sum  of  one  thousand  dollars,  and  a  witness  who  was  present 
at  the  time  the  deed  was  executed,  stated  that  the  understand- 
ing was  that  Lucinda  Hunt  should  execute  to  William  Hunt 
a  bond  for  $1000,  and  was  to  retain  the  land  until  the  debt 
was  paid. 

The  defendants,  in  their  answer,  resist  the  prayer  of  the  bill 
upon  the  ground  that  there  is  no  evidence  that  William  Hunt 
meant  to  convey  more  than  a  life-estate  to  the  trustee,  Moore, 
and  because,  as  they  alledge,  there  was  no  consideration  for 
this  deed. 

By  an  amendment  to  their  answer,  defendants  set  out  that 

in  the  year ,  some  of  the  negroes  in  question  were  levied 

on  under  an  execution  against  James  Hunt,  and  sold,  where- 
upon, the  trustee,  Moore,  brought  an  action  against  the  pur- 


DECEMBER  TERM,  1860.  93 


Hunt  V.  Frazier, 


chaser  to  recover  them  back  ;  which  action,  Moore,  after  tak- 
ing a  bond  of  indemnity  from  William  Hunt  and  Liicinda 
Hunt  compromised  by  agreeing  to  pay  $3G6.4S,  which  money 
was  paid  by  William  Hunt.  The  defendant  claimed  to  have 
this  sum  added  to  the  $1000,  and  have  the  land  declared  a 
security  for  the  whole  sum  in  casi  the  Court  should  decree  a 
reformation  of  the  deed.  Tiie  cause  being  set  for  hearing  up- 
on tlie  bill,  answer,  exhibits  and  proofs,  was  transferred  to  this 
Court  by  consent. 

I^oiole,  for  the  plaintiff. 

Moore  and  Beade,  for  the  defendant. 

Peakson,  C.  J.  It  M-as  the  intention  of  the  parties  to  vest 
in  Moore  a  fee  simple  estate.  This  is  clear,  from  all  the  cir- 
cumstances of  the  case.  The  warranty  is  to  Moore  and  "  his 
iieirs."  The  bond  of  Moore  binds  "  his  heirs"  for  the  perform- 
auce  of  the  trust,  and,  indeed,  the  purpose  of  the  parties,  and 
tlie  trust,  set  out  in  the  deed,  made  it  necessary  to  give  to  the 
trustee  the  legal  estate  in  fee.  So  the  omission  of  the  word, 
"heirs,"  in  limiting  the  legal  estate,  was  the  effect  of  acci- 
dent, or  occurred  through  the  ignorance  or  niistake  of  chc 
draftsman. 

Courts  of  equity  do  not  assume  jurisdiction  to  reform  deeds, 
unless  the  transaction  be  based  on  a  valuable  or  a  meritorious 
consideration. 

William  Hunt  did  not  stand  in  a  relation  to  the  wife  and 
children  of  his  brother,  which  imposed  on  him  either  a  natur- 
al or  a  moral  obligation  to  make  provision  for  them,  conse- 
quently, the  suggestion  of  a  meritorious  consideration  is  out 
of  the  question,  and  the  case  depends  on  the  allegation  of  a 
valuable  consideration. 

We  are  satisfied  from  the  pleadings  and  proofs,  in  connec- 
tion with  the  deeds  exhibited,  that  the  transaction  was  of  this 
nature  :  William  Hunt,  a  man  of  good  estate,  and  without 
family,  had  been  induced  to  advance  in  aid  of  James  Hunt, 
who  was  his  brother,  had  a  large  family,  and  had  become  em- 


m  THE  SUPREME  COURT. 


Hunt  V.  Frazier. 


barrassed  and  much  reduced  in  his  estate,  the  sum  of  one 
thousand  dollars,  and  as  a  security  therefor,  had  taken  from 
him  a  conveyance  of  the  land  on  which  he  lived,  and  the  ne- 
gro woman  and  her  two  children,  who  assisted  his  wife  in  do- 
mestic matters.  Whereupoia,  it  was  concluded  between  them, 
that  William,  instead  of  holding  the  title  as  a  security  for  his 
money,  should  convey  it  to  their  friend,  Moore,  who  was  to 
hold  it  as  a  security  for  the  debt,  and  at  the  same  time  man- 
age it  in  such  a  way  as  to  furnish  the  wife  and  children  of 
James  a  home  and  the  means  of  subsistence.  The  liberality 
of  William,  did  not  extend  so  far  as  to  make  a  giftoi  tlie  land 
and  negroes  to  the  wife  and  children  of  his  brother,  but  only 
to  postpone  the  collection  of  the  money  due  to  him,  in  order 
to  let  the  wife  and  children  have  a  comfortable  support  out  of 
the  profits  of  the  property,  retaining,  however,  his  lien  on  the 
property  as  security  for  the  payment  of  the  amount  of  his 
debt,  together  with  the  interest  thereon. 

Viewed  in  this  light,  the  wife  and  children  of  James  are 
not  simply  volunteers,  nor  is  the  transaction  one  of  mere 
bounty  on  the  part  of  William  Hunt,  but  the  securing  of  his 
debt  of  one  thousand  dollars  with  interest,  formed  a  valuable 
consideration,  and  the  unusual  circumstance,  that  the  trustee 
was  required  to  execute  a  penal  bond,  binding  himself  and 
his  heirs  to  perform  the  trust,  and  hold  the  property  as  a  se- 
curity for  the  debt  and  interest,  shows,  beyond  question,  that 
the  parties  did  not  treat  the  conveyance  as  voluntary,  and 
without  consideration. 

It  follows  that  the  plaintiffs  are  entitled,  in  equity,  to  have 
the  deed  reformed  so  as  to  vest  the  legal  estate  in  the  heirs  of 
the  trustee,  but  in  urging  their  right  to  be  relieved  from 
the  effects  of  a  mistake,  they  are  met  by  another  maxim  of 
equity,  "  he  who  asks  equity  must  do  equity,"  and  inasmuch 
as  William  Hunt,  for  the  purpose  of  saving  a  part  of  the  pro- 
perty, was  compelled  to  make  a  further  advance  of  the  sum 
of  $356.45,  it  is  right  that  this  latter  sum  should  be  added  to 
the  original  sum  of  $1000,  and  that  the  property  should  be 
held  as  a  security  for  the  whole  sum  with  the  interest  thereonj 


DECEMBER  TERM,  1860.  ^ 

Biddle  v.  Carraway. 

This  meets  the  eqiiit}^  of  the  case,  for  the  additional  outlay 
is  embraced  by  the  spirit  of  the  agreement,  and  had  a  neces- 
sity for  it  been  foreseen,  the  deed  would,  assuredly,  have 
made  provision  for  it. 

The  time,  at  which  the  money.and  interest  is  to  be  paid,  is 
not  expressly  fixed,  either  by  the  deed  or  the  bond  ;  it  was 
evidently  not  the  intention  to  require  payment,  so  long  as  the 
proceeds  of  the  property  should  be  needed  for  the  comforta- 
ble support  of  Mrs.  Hunt,  and  we  think,  according  to  its  pro- 
per construction,  the  deed  gives  to  her  the  proceeds  of  the 
property  during  her  life,  and  at  her  death,  the  money  charged 
thereon,  together  witli  interest,  is  to  be  raised  out  of  the  pro- 
pel*ty,  and  the  residue  is  then  to  be  conveyed  to  her  children. 

Per  CuKiA^r,  Decree  accordingly. 


SAMUEL  S.  BIDDLE  against  WILLIAM  W.  CARRAWAY  AND 
OTHERS. 

Where  a  testator  directed  a  pecuniary  legacy  of  $1500  to  be  paid  to  his  wife  by 
his  executors  "  out  of  my  estate,"  for  a  certain  purpose,  and  by  a  codicil 
reduced  the  amount  to  $750,  "  to  be  paid  by  my  executors,"  it  was  held 
that  the  terms  of  the  codicil  did  not  annul  the  force  of  the  words  "  out  of 
my  estate,"  contained  in  the  will. 

Where  a  testator,  after  bequeathing  certain  property  for  the  payment  of  his 
debts,  gave  the  residue  of  his  property  in  specific  devises  and  bequests,  and 
then  bequeathed  general  pecuniary  legacies  with  the  direction  "  to  be  paid 
by  my  executors  out  of  my  estate,"  and  the  fund  provided  for  the  payment 
of  debts,  proved  insufficient  for  the  purpose,  it  w&sheld,  (Pearson,  C.  J.,  dis- 
sentiente,)  that  the  pecuniary  legacies  were  a  charge  upon  the  specific  ones, 
and  that  the  latter  must  be  exhausted  before  the  former  could  be  touched. 
But  whether  they  were  a  charge  on  the  land  specifically  devised.     Quere  ? 

Personal  property,  which  a  testator  has  given  away  in  his  life-time,  and  which 
does  not  need  the  aid  of  his  will  to  pass  the  title  to  it,  does  not  abate  for 
the  payment  of  debts,  where  there  is  a  deficiency  of  assets,  although  the 
testator  confirms  the  gift  in  his  will. 


96  IN  THE  SUPREME  COURT.  ' 

Biddle  v.  Carraway. 

Cause  removed  from  the  Court  of  Equity  of  Lenoir  county. 

Snoad  B.  Carraway  died  in  tlie  county  of  Lenoir,  about  the 
year  1858,  leaving  a  Last  will  and  testament,  in  which  he  ap- 
pointed the  plaintiff  and  the  defendant,  William  W.  Carra- 
way, executors,  and  this  bill  is  filed  against  defendant,  Carra- 
way, and  the  legatees  and  devisees,  and  prays  among  other 
Illinois,  for  a  construction  of  the  executor's  will. 

The  parts  of  such  will  as  are  necessary  to  a  correct  appre- 
hension of  tlie  matters  in  controversy,  are  as  follows : 

"First,  I  wish  my  just  debts  to  be  paid  out  of  the  sales  of 
my  perishable  property,  not  liereafter  given  away ;  should 
my  perishable  property  be  insutiicient  to  pay  my  debts,  I  wish 
the  following  negroes  to  be  sold  on  a  credit  of  one  year,  with 
interest  from  the  sale,  Rosetta,  Jordan,  Joshua,  Noah,  John, 
Wesley,  and  also,  the  children  the  said  Rosetta  maj'  hereafter 
have ;  should  the  said  negroes  not  be  necessary  for  the  pay- 
ment of  my  debts,  in  that  case  I  give  and  bequeath  tliem  to 
my  son  W.  W.  Carraway  and  Maiy  J.  Nicholson,  to  be  equal- 
ly divided  between  them." 

Second.  This  clause,  after  devising  and  bequeathing  to 
Sarah  F.  Carrawa}',  w'ife  of  the  testator,  a  tract  of  land  with 
the  improvements,  also,  slaves,  stock,  farming  utensils,  furni- 
ture, &c.,  proceeds  as  follows :  "  I  hereby  direct  my  execu- 
tor to  pay  to  my  wife,  Sarah  F.  Carraway,  one  thousand  five 
hundred  dollars  out  of  my  estate,  to  repair  and  furnish  the 
house  at  Brandon,  in  Wake  county,  also,  an  ample  sufficiency 
of  every  necessary  for  the  support  of  herself  and  family  one 
year. 

"Seventh.  I  give  and  bequeath  unto  cousin  Louisa  Carra- 
way, five  Iiundred  dollars,  to  be  paid  by  my  executors  out  of 
my  estate." 

The  testator,  in  the  other  clauses  of  his  will,  devises  and 
bequeaths,  specifically,  to  his  children  and  to  his  sisters,  a 
large  real  and  personal  estate. 

To  this  will,  there  was  a  codicil  in  these  words  :  "  Whereas, 
I,  Snoad  B.  Carraway,  of  the  county  of  Lenoir,  and  State  of 
North  Carolina,  have  made  my  last  will  and  testament,  in 


DECEMBER  TERM,  1860.  97 

Biddle  v.  Carraway. 

writing,  bearing  date,  January  the  twenty-eighth,  one  thou- 
sand eiglit  hundred  and  lifty-six,  in,  and  by  which,  I  have 
directed  my  executors  to  pay  to  m}'^  wife,  Sarah,  fifteen  hun- 
dred dolhirs,  for  the  purpose  of  repairing  and  furnishing  the 
house  at  Brandon,  Wake  count_y.  Now,  therefore,  I  do  by  this, 
my  writing,  whicli  I  do  hereby  decLare  to  be  a  codicil  to  ray 
last  said  will  and  testament,  and  to  be  taken  as  a  part  thereof, 
order  and  declare  that  my  will  is,  that  the  sum  of  seven  hun- 
dred and  fifty  dollars  shall  be  paid  by  my  executor  to  my 
wife,  Sarah,  to  finish  the  improvements  and  furnish  the  house 
at  Brandon,  Wake  count}',  the  chief  part  having  already  been 
done." 

The  pleadings  disclose  the  fact,  that  after  exhausting  the  pro- 
ceeds of  the  sale  of  the  perishable  property,  and  of  the  sales 
of  negroes,  provided  by  the  testator  as  a  fund  for  the  payment 
of  debts,  there  remained  due  from  the  estate,  debts,  to  the 
amount  of  $5,400.  The  principle  question,  raised  by  the  plead- 
ings, is,  whether  the  general  pecuniar}^  legacies  to  Mrs.  Car- 
raway, and  the  pecuniary  legacj'  to  Louisa  Carraway,  are 
charges  upon  the  specific  legacies,  or  whether  they  fail  through 
a  deficiency  of  assets. 

The  cause  being  set  down  for  hearing  upon  bill,  answers, 
and  exhibits,  was  tranferred  to  this  Court  by  consent. 

J.   W.  Bryan^  for  the  plaintifi'. 
Strong  and  Fowle,  for  the  defendants. 

Battle,  J.  The  bill  was  filed  for  the  purpose  of  obtaining 
a  construction  of  the  will  of  Snoad  B.  Carraway,  deceased, 
and  the  main  questions  raised  by  the  pleadings  are,  whether 
the  legRcies  given  by  the  testator  to  his  wife,  to  repair  and 
furnish  "  the  house  at  Brandon,  in  Wake  county,"  and  for 
one  year's  support  of  her  herself  and  her  family,  and  the  leg- 
acy of  $500  given  to  the  testator's  cousin,  Louisa  Carraway, 
are  bequeathed  in  such  terms  as  to  make  them  a  charge  upon 
the  specific  legacies;  or  are  they  to  be  regarded  as  mere  pe- 
cuniary legacies,  not  so  charged,  and,  therefore,  first  liable  for 

7 


m  THE  SUPKEME  COURT. 


Biddle  v.  Carraway. 


the  payment  of  debts,  upon  a  deficiency  of  the  assets  appro- 
priated for  that  purpose  ? 

The  language  of  the  bequest  to  the  wife,  is  as  follows :  "  I 
hereby  direct  ray  executors  to  pay  to  my  wife,  Sarah  F. 
Carraway,  one  thousand  five  hundred  dollars,  out  of  my  es- 
tate, to  repair  and  furnish  the  house  at  Brandon,  in  Wake 
county.  Also,  an  ample  sufficiency  of  every  necessary  for 
the  support  of  herself  and  family  for  one  year,"  The  bequest 
to  Louisa  Carraway  is  of  "  five  hundred  dollars,  to  be  paid  by 
my  executor  out  of  my  estate."  By  a  codicil,  the  testator  de- 
clared his  will  to  be  "  that  the  sum  of  seven  hundred  and  fif- 
ty dollars  shall  be  paid  by  my  executor  to  my  wife,  Sarah,  to 
finish  the  improvements,  and  furnish  the  house  at  Brandon, 
Wake  county,  the  chief  part  having  already  been  done."  A 
question  has  been  made  upon  the  terms  of  the  codicil :  whether 
they  revoke  and  annul  the  force  of  the  expression  contained 
in  the  will,  that  the  legacy  is  to  be  paid  by  the  executor  out 
of  the  testator's  estate.  We  think  clearly  that  they  do  not; 
because  it  is  manifest  that  the  testator's  only  intention  was  to 
lessen  the  amount  of  the  legacy,  the  object  of  the  bequest 
having  been  already  partly  accomplished.  In  the  late  case  of 
DaZton  v,  Houston,  5  Jones'  Eq.  401,  the  following  passage 
from  1  Jarman  on  Wills,  160,  in  regard  to  the  efi'ect  of  a  codi- 
cil upon  a  will,  is  quoted  with  approbation,  and  we  think  it 
governs  the  present  case.  "  In  dealing  with  such  cases,  (says 
Mr.  Jarman,)  it  is  an  established  rule  not  to  disturh  the  dispo- 
sitions of  the  will,  further  than  is  absolutely  necessary  for  the 
purpose  of  giving  efi'ect  to  the  codicil." 

Another  question  has  also  been  made,  whether  the  bequest 
for  the  widow's  years'  support  is  expressed  in  the  terms  "  to  be 
paid  by  the  executor  out  of  the  estate,"  and  we  think  it  is,  by 
force  of  the  word  "  also  "  coming  immediately  after  the  lega- 
cy given  for  the  repair  and  furnishing  of  the  house  at  Brand- 
on." 

These  questions  are  preliminary  to  the  main  one,  which  we 
will  now  proceed  to  consider.  In  discussing  this  question,  we 
will  first  remark,  that  if  the  testator  had  simply  directed  the 


DECEMBER  TERM,  1860.  99 


Biddle  v.  Carraway. 


legacies  to  be  paid  out  of  liis  estate,  without  saying  by  his  ex- 
ecutor, we  should  not  hesitate  to  hold  that  they  were  a  charge 
upon  the  land  as  well  as  upon  tlie  personal  property ;  the 
former,  however,  being  only  an  auxiliary  fund  to  be  brought 
in  after  the  latter,  as  the  primary  funds,  had  been  exhausted. 
In  support  of  this  proposition,  we  should  rely  upon  the  case 
of  Bray  v.  Laml,  2  Dev.  Eq.  Rep.  372,  as  one  directly  in 
point.  The  expression  there,  was,  "  I  give  and  bequeath  unto 
Nancy  Guilford  Bray,  five  hundred  dollars,  to  be  raised  and 
paid  out  of  ray  estate."  The  Court  held  the  legacy  to  be  well 
charged  upon  the  land.  In  delivering  the  opinion,  we  do  not 
discover  that  Ruffin,  Chief  Justice,  laid  any  particular  stress 
upon  the  word  "  raised,"  and  we  are  unable  to  perceive  any 
difference  in  the  meaning  of  the  terms  "raised  out  of  my  es- 
tate," and  "  paid  out  of  my  estate."  We  do  discover,  though, 
tliat  he  emphasises  the  word  '■^ estate^''  to  show  that  the  realty 
as  well  as  the  personalty,  was  included  in  its  signification.— 
We  do  not  overlook  the  fact  that  his  Honor  uses  the  word 
"  raised,"  and  it  was  natural  that  he  should  do  so,  because 
that  word  was  used  in  the  will,  but  we  cannot  perceive  that 
he  assigns  to  it  a  meaning  stronger  than  v^^ould  have  been  con- 
veyed by  the  word  "  paid,"  to  which  it  is  conjoined.  But  it 
is  unnecessary  to  pursue  the  enquiry,  as  it  is  contended  in  the 
present  case,  that  as  the  legacies  are  to  be  paid  out  of  the  es- 
tate ly  the  executor^  the  land  cannot  have  been  meant,  be* 
cause  the  executor  has  no  control  given  him  hj  the  will  ovei* 
the  land,  and,  therefore,  the  term  "estate"  must  be  restrict- 
ed to  the  personal  estate.  Supposing  that  to  be  so,  still  the 
expression  may  furnish  an  argument  that  if  the  testator  in- 
tended to  charge  the  legacies  upon  the  real,  as  well  as  the  per- 
sonal estate,  and  failed  to  do  so  as  to  the  land,  because  he  di- 
rected them  to  be  paid  by  his  executor,  it  shows  conclusively 
tliat  he  intended  them  to  be  paid  out  of  the  primary  fund,  to 
wit,  the  whole  personal  estate.  Waiving,  however,  this  argu- 
ment, we  are  inclined  to  the  opinion,  that  when  a  testator  di- 
rects a  pecuniary  legacy  to  be  paid  by  his  executor,  out  of  his 
estate,  he  thereby,  either  expressly,  or  by  the  necessary  con- 


IJSr  THE  SUPKEME  COUKT. 


Biddle  v.  Carraway. 


struction  of  his  language,  gives  it  a  preference  over  his  speci- 
fic legacies,  or,  in  other  words,  he  means  that  it  shall  be  paid 
any  how,  or  in  any  event,  provided  all  the  personal  assets  are 
not  exhausted  in  the  payment  of  debts.  But,  if  we  are  mis- 
taken in  this,  as  a  general  proposition,  we  are  satisfied  that 
the  testator  so  intended  in  the  present  case,  and  that  such  in- 
tention is  so  clearly  manifested  in  the  will  itself,  that  we  are 
bound  to  give  efi"ect  to  it. 

The  general  proposition  is,  we  think,  supported  by  princi- 
ple, as  well  as  by  the  autliority  of  the  leading  case,  jSayer  v.  Say- 
er,  Prec.  Chan.  392.  The  general  rule  undoubtedly  is,  that 
specific  legacies  do  not  abate  in  favor  of  pecuniary  legacies. 
This  is  founded  on  the  presumed  intention  of  the  testator,  that 
they  shall  not  so  abate ;  but  it  is  clear  that  the  testator  may 
declare  a  different  intention,  and  may,  if  he  think  proper,  by 
express  words,  or  by  a  necessary  implication,  put  general  or 
pecuniary  legacies  upon  the  same  footing  in  this  respect  with 
specific  legacies,  or  may  impose  them  as  a  charge  upon  such 
legacies,  so  that,  upon  a  deficiency  of  assets,  for  the  payment 
of  debts,  tlie  specific  legacies  shall  be  first  exhausted  before 
the  general  or  pecuniary  legacies  can  be  taken.  There  are 
two  classes  of  cases  where  such  will  be  the  result:  first,  where 
a  testator  gives  specific  and  pecuniary  legacies,  and  after- 
wards says  that  such  pecuniary  legacies  shall  come  out  of  all 
his  personal  estate,  or  words  tantamount.  Secondly,  where 
there  is  no  other  personal  estate  than  the  specific  legacies; 
for,  in  that  case,  they  must  be  intended  to  be  subject  to  the 
pecuniaiy  legacies,  otherwise,  those  legacies  would  be  mock- 
ed ;  See  White  v.  Beaty,  1  Dev.  Eq.  87  and  320.  In  Sayer 
V.  Sayer^  the  specific  legacy  was  not  subjected  to  the  payment 
of  the  general  legacy,  on  account  of  the  special  words  of  the 
will,  but  the  general  principles  with  regard  to  the  two  classes 
of  cases  above  specified,  were  clearly  recognised  and  laid 
down  l)y  the  Lord  Chancellor.  In  the  wnll  now  before  us, 
the  testator,  in  plain  terms,  directs  the  general  oj*  pecuniary 
legacies  in  question  to  be  paid  by  his  executor  "  out  of  his 


DECEMBER  TERM,  1860.  lOI 


Biddle  v.  Carraway. 


estate,"  which,  as  there  is  no  exception,  must  mean  out  of  his 
whole  estate. 

But,  if  the  proposition,  that  a  general  or  pecuniary  legacy 
is  charged  upon  a  specific  one,  (when  there  is  a  deficiency  of 
assets  to  pay  both,)  by  tlie  express  direction  to  tiie  executor 
to  pay  it  out  of  the  testator's  estate,  is  denied  or  doubted,  we 
then  say,  with  great  confidence,  that  the  testator,  in  the  pres- 
ent will,  has  given  a  preference  of  the  pecuniary  legacies 
over  the  specific  ones.     The  testator  has,  as  we  think  is  appa- 
rent from  tiie  will  itself,  given  away  all  his  estate,  both  real 
and  personal,  specifically,  except  the  fund  which  he  directs  to 
be  first  applied  in  the  i^ayment  of  his  debts.     Of  the  suflici- 
ency  of  that  fund  for  the  purpose  intended,  he  expresses  a 
doubt  by  saying  "should  my  perishable  property  be  insuffi- 
cient^to  pay  my   debts,  I  wish   the  following  negi-oes  to  be 
sold,"  &c.     He  then  specifies  six  negroes  whom  he  wishes  to 
be  sold  for  the  payment  of  the  residue  of  his  debts,  giving 
them,  if  not   wanted,  or  so   many  of  them  as  might  not  be 
wanted  for  that  purpose,  to  cei-tain  specified  legatees.     The  tes- 
tator then,  having  given  away  specifically  all  his  personal  estate, 
except  the  perishable  property  which  he  devoted  to  the  payment 
of  his  debts,  and  which  he  manifestly  supposed  might  not  be  suf- 
ficient for  the  purpose,  and  which  the  answers  admit  was  not  suf- 
ficient for  the  purpose,  out  of  what  fund  could  he  have  intended 
his  general  legacies  to  he  paid  when  he  directed  them  to  be  paid 
out  of   his  estate?     The   reply  is  obvious  that  he  intended 
that  they  should  be  paid  out  of  the  personalty  which  he  had 
given  away  in  specific  legacies,  if  it  should  become  necessary 
to  do  so.     In  this  view  of  the  case,  we  think  that  we  are  fully 
sustained  by  the  decisisn  of  this  Court,  in  White  v.  Green,  1 
Ired.  Eq.  45.     There  the  general  legacy  was  given  in  terms 
not  so  strong  in  favor  of  a  preference  over  specific  legacies  as 
the  present.     The  words  were,  "I  give  and  bequeath  to  ray 
wife's  son,  William  Watson,  the  sum  of  five  hundred  dollars, 
to  be  paid  to  him  by  my  executor  out  of  such  moneys  as  he 
may  think  best."    The  case  came  on  to  be  heard  upon  an  ap- 
peal from  a  decree  made  in  the  Court  below,  and  Ruffin, 


102  IN  THE  SUPEEME  COUET. 

Biddle  v.  Carraway. 

Chief  Justice,  in  delivering  the  opinion  of  this  Court^said: 
"  His  Honor  held,  that  the  legacies  to  the  nieces,  were  not  at 
all  liable,  because  they  are  specific,  and  do  not  abate  with,  or 
contribute  to  general  legacies.  Tliat,  we  know,  is  the  general 
rule,  but  there  is  an  exception  to  it,  within  which,  we  think, 
this  case  falls.  If  a  general  legacj^  be  expressly  charged  up- 
on a  specific  legacy,  then,  of  course,  it  is  payable  thereout. — 
So,  if  a  pecuniary  legacy  be  given,  or  there  be  no  fund  to 
pay  it,  or  rather,  if  there  never  was  any  fund  to  pay  it,  ex- 
cept the  specific  legacies,  owing  to  the  fact  that  every  tiling 
18  given  away  specifically,  the  necessary  construction  is,  that 
the  general  legacy  is  to  be  raised  out  of  the  personal  estate, 
although  specifically  bequeathed.  For,  it  is  not  to  be  suppos- 
ed that  the  testator  meant  to  mock  tlie  legatee ;  Saye7'  v.  Bay- 
er, Pre.  Ch.  393 ;  Eop.  on  Legacies  255,  3d  Ed. ;  White  v. 
Beaty,  1  Dev.  Eq.  87  and  320.  This  wilt  descend  so  minute- 
ly into  the  enumeration  of  articles,  that  it  is  merely  to  be  in- 
ferred from  the  will  itself  that  it  disposes  of,  or  professes  to  dis- 
pose of,  all  the  property  the  testator  had.  But  the  answers^ 
which  are  to  be  taken  to  be  true,  remove  all  doubt.  They 
state  that  the  testator  left  nothing,  and  had  nothing,  at  the  ma- 
king of  the  will,  applicable  to  the  payment  of  this  legacy, 
but  such  as  he  has  given  specifically.  He  left  cash  and  debts 
due  to  him,  to  the  amount  of  about  $100 ;  but  he  owed  a 
larger  sum.  This,  we  think,  a  sufficient  ground  of  itself,  for 
holding  the  specific  legacies  liable,  without  recurring  to  the 
direction  to  the  executors  to  pay  the  pecuniary  legacy  '  out 
of  such  moneys  as  he  may  think  fit.'  Those  words,  however, 
strengthen  the  inference  of  the  charge ;  because  '  moneys  ^ 
could  not  mean  cash  in  hand,  (of  which  there  was  only  about 
$20,)  but  meant  cash  to  be  raised  by  the  sale  or  hiring  of 
jyroperty  .'^^ 

These  remarks,  are  in  our  opinion,  almost,  if  not  quite  as 
applicable  to  the  facts  of  the  case  now  before  us,  as  they  were 
to  that,  in  which  they  were  made,  and  lead  irresistibly  to  the 
conclusion  that  the  testator,  in  the  present  case,  intended  to 
charge,  and  has  effectually  charged,  the  general  legacies  ia 


DECEMBER  TERM,  1860.  103 

Biddle  v.  Carraway. 

question  upon  all  the  specific  legacies,  so  all  that  the  latter  are 
to  be  taken  for  the  payment  of  the  testator's  debts  before  the 
former  can  be  touched.  The  specific  legacies  to  the  widow, 
herself,  will  be  taken,  or,  if  all  are  not  wanted,  will  abate ^ro 
rata,  with  the  others. 

We  have  examined  the  cases  of  Everett  v.  Lane,  2  Ired. 
Eq.  548,  and  iShaw  v.  McBride,  3  Jones'  Eq.  173,  to  which 
our  attention  has  been  called  by  the  counsel  for  the  defend- 
ants, and  do  not  find  any  thing  in  them  inconsistent  with  the 
principles  which  we  think  lead  to  the  conclusion  at  which  we 
have  arrived. 

The  personal  property  wiiich  the  testator  had  given  away 
in  his  life-time,  and  which  did  not  need  the  aid  of  his  will  to 
pass  the  title  to  it,  cannot  be  taken,  because  such  gifts  are  not 
legacies  of  any  kind. 

The  questions  on  which  we  have  declared  our  opinion,  are 
the  only  ones  which  have  been  argued  before  us,  and  we  pre- 
sume the  parties  may  now  frame  a  decree  which  will  put 
an  end  to  their  litigation. 

Manly,  J.,  concurred  in  the  above  opinion. 

Pearson,  C.  J.,  dissentiente.  The  large  fund  not  specifical- 
ly bequeathed,  consisting  of  perishable  property,  crops,  &c., 
debts  due  testator  and  certain  slaves,  turns  out  not  to  be  suffi- 
cient to  pay  the  debts  and  general  pecuniary  legacies. 

The  question  is,  what  is  to  be  done  in  this  unexpected  state 
of  things? 

It  is  clear  the  specific  legacies  must  abate  in  order  to  pay 
the  debts ;  but  must  a  further  abatement  be  made  to  pay  the 
general  pecuniary  legacies  in  full?  or  to  contribute ^'o  ra^a, 
60  as  to  divide  the  loss?  Or  are  the  pecuniary  legacies  to  fail 
because  of  this  want  of  funds  ? 

The  general  rule  is  admitted  to  be,  that  specific  legacies  do 
not  abate  in  favor  of  general  pecuniary  legacies,  unless  there 
is  something  in  the  will  to  show  an  intention  on  the  part  of 
the  testator  to  give  a  preference  to  the  latter.  The  rule  is 
founded  on  this  reason :  a  specific  legacy  is  a  perfected  gift, 
made  by  the  testator  himself,  who  points  out  the  identical 


10-i  m  THE  SUPEEME  COURT. 


Biddle  v.  Carraway. 


subject  of  the  gift,  whereas,  a  general  pecuniary  legacy  is  on- 
ly a  direction  to  the  executor  to  pay  a  certain  amount  provi- 
ded he  has  funds  in  his  hands. 

I  do  not  find  any  ground  in  this  case  for  making  an  excep- 
tion to  the  general  rule.  1.  It  is  a  correct  principle  ;  that  if 
one  makes  specific  bequests  of  all  of  his  estate^  and  also  makes 
a  general  pecuniary  legacy,  it  will  be  implied  that  it  was  his 
intention  to  subject  the  specific  legacies  to  the  payment  of  the 
pecuniary  legacy,  "  for  otherwise,  he  would  mock  the  lega- 
tee ;"  Sayer  v.  Sayer,  Pre.  Chan.  393.  "  Suppose  one  pos- 
sessing a  personal  estate  at  B  and  C  only,  bequeath  it  specifi- 
cally to  D  and  E,  and  then  gives  a  legacy  to  F  generally,  the 
personal  estate  at  B  and  C  will  be  liable  to  the  payment  of 
this  legacy,  as  there  never  was  any  other  fund  out  of  which 
the  legacy  to  F^  could  have  heen  satisfied'^''  1  Roper  418;  Tol- 
ler on  Executors  226. 

The  difiiculty  seems  to  be  in  making  the  application  of  the 
principle,  which  no  doubt  arises  from  the  fact  that  it  always 
appears  to  be  a  "  hard  case  "  that  a  legatee  should  lose  the 
bounty  which  he  expected,  and  which  was  intended  for  him. 
There  is  no  doubt  that  every  testator  intends  and  expects  that 
all  the  legatees  will  get  what  he  gives  them,  and  when  an  un- 
expected state  of  things  arises,  so  that  some  must  be  disap- 
pointed, it  is  considered  hard  that  one,  to  whom  a  small  mo- 
ney legacy  is  given,  say  $500,  should  lose  it  all,  and  one  to 
whom  a  specific  legacy  of  the  value  of  many  thousands  is  giv- 
en, should  get  all  of  it,  which  is  ordinariW  the  case.  But  re- 
verse the  position,  shall  one,  to  whom  a  small  specific  legacy 
is  given,  say  a  watch  or  riding  horse,  be  obliged  to  give  it  up 
for  the  benefit  of  one  to  whom  a  legacy  of  $10,000  is  given,  and 
then  the  supposed  hardship  is  put  on  the  other  side.  This  is 
the  mode  to  test  the  })rinciple  and  avoid  the  danger  of  a  mis- 
application. 

No  one  can  read  the  case  of  IVhite  v.  Beaty,  as  at  first  de- 
cided, 1  Dev.  Eq.  87,  without  being  satisfied  that  the  Court 
were  led  into  a  misapplication  of  the  principle,  because  of 
the  supposed  hardship.     Indeed,  when  the  case  was  again 


DECEMBER  TERM,  1860.  105 

Biddle  v.  Canaway. 

brought  before  the  Court,  eighteen  months  afterwards.  1  Dev. 
Eq.  320,  the  former  decree  is  reversed,  and  Judge  IIendkrson, 
ter  showing  that  the  principle  only  api)lies  where  the  testa- 
tor gives  away  the  wJwle  of  his  estate  in  specific  legacies^  and 
then  gives  a  pecuniary  legacy,  and  that  it  does  not  apply 
when  there  is  any  2>ortlon  of  the  estate  not  given  away  in 
specific  legacies,  although  such  portion  may  be  lost  or  wasted 
by  the  executor,  or  consumed  in  the  lyayment  of  dehts,  con- 
cludes by  saying  the  case  of  Sayer  v.  iSayei\  does  not  support 
the  former  decision.  "The  truth  is,  when  the  case  was  before 
us  heretofore,  the  facts  were  strangely  misconceived." 
.  In  W/iite  V.  Green,  1  Ired.  Eq.  45,  the  same  priuci]>le  came 
up  for  application ;  the  priiiciple  is  correctly  defined;  Sayer 
V.  Sayer  and  White  v.  Beaty^  are  cited,  and  the  Court  sa}^  "it 
is  nearly  to  be  inferred  from  the  will  itself,  that  it  disposes, 
or  professes  to  dispose  of,  all  the  property  the  testator  had  ; 
but  the  answers  remove  all  doubt;  they  state  that  the  testator 
left  nothing,  and  had  nothing  applicable  to  the  payment  of 
this  legacy,  but  such  as  he  had  given  specilically."  Whether 
that  is  not  another  instance  where  the  Court,  after  correctly 
stating  the  principle,  depart  from  it  in  making  the  applica- 
tion, by  introducing  the  words  ^Heft  nothioig^  and  had  noth- 
ing  applicahle  to  the  ijayment  of  this  legacy^''  may  be  ques- 
tioned ;  for  taking  the  principle,  as  defined  in  that  case,  and  in 
White  v.  Beaty  and  Sayer  v.  Sayer,  it  is  obviously  necessary, 
in  order  to  make  it  applicable,  tliat  the  testator  should  give 
awa}^  the  whole  of  his  estate  in  specific  legacies,  for  other- 
wise, the  natural  inference  is,  that  he  M^as  mistaken  as  to  the 
amount  of  his  debts,  vviiich  is,  by  no  means,  an  unusual  thing, 
and  there  is  no  necessity  for  presuming  that  he  intended  to 
charge  the  specific  legacies  with  the  payment  of  the  pecunia- 
ry legacies,  in  order  to  avoid  the  inference  "that  he  intended 
to  mock  the  legatee."  So,  in  my  opinion,  the  principle  does 
not  apply  to  our  case. 

2.  The  words  "to  be  paid  by  my  executors  out  of  my  es- 
tate," added  to  the  legacy  of  $500,  cannot,  in  my  opinion,  be  al- 
lowed the  effect  of  making  this  case  an  exception  ;  because  they 


106  IN  THE  SUPREME  COURT. 

Biddle  v.  Carraway. 

are  not  sufficiently  expiessive'of  an  intention  to  charge  the  lega- 
cy of  $500  on  the  specific  legacies.  Instead  of  giving  to 
them  the  effect  of  making  a  charge,  I  think  they  are  rather 
to  be  treated  as  expletive,  or  words  of  surplusage.  A  testator 
gives  his  negro  man,  "Jacob  to  A,  to  be  delivered  to  him  by 
my  executor ;"  these  words  are  expletive,  and  amount  to  no 
more  than  would  be  implied;  and  he  gives  $500  to  B,  "to  be 
paid  by  my  executor  out  of  my  estate;"  these  words  are  ex- 
pletive, for,  as  a  matter  of  course,  if  paid  at  all,  it  will  be  paid 
out  of  the  estate.  Should  it,  contrary  to  all  expectation,  turn 
out  that  the  balance  of  the  estate  is  all  exhausted  in  the  pay- 
ment of  debts,  so  as  only  to  leave  "Jacob"  on  hand,  it  seems 
to  me  a  strange  result  that  the  ne^ ro  given  to  A,  must  be  sold 
in  order  to  pay  B,  the  $500 !  At  the  most,  it  would  seem 
that  B  could  only  expect  A  to  divide  the  loss  with  him,  and 
yet,  if  the  words  amount  to  a  charge,  B  must  be  paid  the 
whole  $500,  although  A  will  thereby,  get  nothing  at  all.  To 
justify  such  a  result,  surely  the  intention  to  create  a  charge, 
ought  to  be  clearly  expressed. 

Bray  v.  Lamb,  2  Dev.  Eq.  372,  is  relied  on  to  support  the 
position  that  these  words  create  a  charge.  The  words  there, 
were,  "I  give  Nancy  Bi-ay  five  hundred  dollars,  to  be  raised 
and  paid  out  of  my  estate."  The  case  was  attended  with 
some  peculiar  circumstances,  which  are  referred  to  in  support 
of  the  conclusion,  but  the  main  stress  was  put  on  the  word 
"ra^WZ"  out  of  my  estate,  which  word  was  supposed  to  be 
peculiarly  appropriate  to  create  a  charge  ;  and,  it  is  remarka- 
ble that  the  words  "to  be  paid"  out  of  my  estate  are  treated 
as  amounting  to  nothing,  and  are  not  alluded  to  in  the  opin- 
ion ;  so,  that  which  the  builders  then  rejected,  as  useless,  is 
now  to  be  made  the  corner  stone ! 

In  the  earlier  cases  cited  by  Powell  on  Devises,  when  land 
was  not  liable  for  the  payment  of  simple  contract  creditors, 
the  courts  seized  on  almost  any  words  to  create  a  charge  in 
favor  of  such  creditors.  "I  direct  my  debts  to  be  paid"  out 
of  my  estate;  or,  "I  wish  all  of  my  just  debts  to  be  paid," 
were  held  sufficient  to  create  a  charge  on  laud  in  favor  of 


DECEMBER  TERM,  1860.  107 

Hadley  v.  Rountree. 
• 
creditors ;  but,  since  the  law  has  been  changed,  such  words 
are  treated  as  mere  surphisage,  and  no  meaning  is  attached  to 
them,  and  as  far  as  my  researches  have  gone,  such  an  effect 
never  was  given  to  words  of  this  kind  in  order  to  create  a  charge 
in  favor  of  general  pecuniarj'^  legatees,  at  the  expense  of  spe- 
cific legatees,  and  in  our  case,  in  respect  to  the  otlier  pecuni- 
ary legacies  to  the  widow,  as  she  is  a  specific  legatee  of  a 
large  amount  of  property,  she,  as  such,  will  be  obliged  to 
contribute  to  pay  her  own  pecuniary  legacies ! !  Can  it  be 
supposed  in  the  absence  of  plain  words  that  such  was  the  in- 
tention of  the  testator? 

Per  Curiam,         Decree  according  to  the  opinion  of  the 
Court. 


THOMAS  HADLEY  acjainsi  WILLIE  D.  ROUNTREE. 

Where  dealings  between  ji  father-in-law  and  his  son-in-law,  wherein  the  lat- 
ter had  been  the  other's  agent,  were  closed  in  a  hurried  manner,  and  a  noto 
given  by  the  father-in-law  at  the  importunate  solicitation  of  the  son-in-law, 
on  calculations  made  by  him,  under  a  promise  that  the  whole  settlement 
should  be  open  to  subsequent  examination,  and  the  answer  to  specific  alle- 
gations of  errors  was  unfair  and  evasive,  it  was  held  that  an  injunction  to 
restrain  a  judgment  at  law  on  such  note,  should  be  continued  to  the  hear- 
ing, and  that  the  judgment  should  stand  as  security  for  whatever  might  be 
ascertained  to  be  due. 

Appeal  from  an  interlocutory  order  of  the  Court  of  Equity 
of  Wilson  county. 

The  plaintiff",  Hadley,  and  the  defendant,  Rountree,  enter- 
ed into  a  written  agreement  on  the  16th  of  December,  1856, 
wherein  it  was  stipulated  tliat  the  said  Iladley  was  to  put  the 
said  Rountree  into  possession  of  his  mills  and  farm,  on  the  Ist 
of  the  next  ensuing  January,  which,  the  latter  was  to  hold 
until  the  1st  of  Januarj^,  1859 ;  that  Iladley  was  to  pay  for 


108  IN  THE  SUPREME  COUET. 

Hadley  v.  Rountree. 

I* 
all  hires  of  hands,  buildings  and  purchases  for  the  use  of  the 

premises;  that  Rountree  was  to  give  his  personal  attention 
to  the  business,  and  was  to  receive,  at  the  end  of  each  year, 
one  thousand  dollars  as  his  wages,  and  that  any  advances  of 
money,  wliich  he  might  make,  were  to  be  deducted  out  of  the 
proceeds  of  tlie  farm,  mills,  &c.,  and  the  business  to  be  close- 
ed,  at  tiie  end  of  eacli  year,  by  note.     At  the  close  of  the  year 
1857,  Rountree  presented  his  account,  and  Hadley  gave  him 
a  note  for  $14,815.91,  on  which  suit  was  brought,  at  law,  and 
a  judgment  recovered.     The  bill  is  brought  to  enjoin  the  col- 
lection of  this  judgment  and  to  have  an  account  taken  be- 
tween the  parties,  alleging  fraud  and  imposition  in  the   con- 
duct of  the  defendant  in  obtaining  the  note  from   him,  and 
many  false  charges  and  suppressions  of  credits  in  the  account 
on  which  tlie  note  was  founded.     The  plaintifi' alleges  that  he 
is  an  old  man,  and  that  his  business  iiad  become  much  con- 
fused, and  having  much  confidence  in  the  defendant,  who  is 
his  son-in-law,  he  was  induced,  for  tlie  purpose  of  relieving 
himself,  to  enter  into  the  contract  above  stated.     He  says,  to- 
wards the  close  of  the  year  1857,  the  defendant  became  ur- 
gent for  him,  plaintiff,  to  settle  with  him  and  to  give  him  a 
note  for  the  amount  due;  that  to  get  rid  of  these  importuni- 
ties, and  relying  on  the  word  of  the  defendant,  who  promised 
that  the  whole  account  should  be  re-examined  by  some  com- 
petent person,  and  any  errors,  that  might  appear,  should  be 
corrected,  he  was  induced  to  sign  the  note  aforesaid  ;  that  all 
the  calculations  were   made  by  tlie  defendant,  and  that  the 
plaintiif  did  not,  at  all  canvass  them,  nor  any  of  the  items  of 
the  account;  that  all  the  vouchers,  receipts,  &c.,  on  which 
this  account  was  alleged  to  be  based,  were  detained  by  the 
defendant,  and  that  he  had   refused  to  surrender  them  to  the 
plaintiff.     Among  other  specifications  of  the  falseness  of  this 
account,  it  is  alleged  that  the  defendant   had  failed  to  give 
him  credit  for  seven  bales  of  cotton,  of  the  crop  of  1856,  which 
were  on  hand  when  the  defendant  took  charge  of  the  busi- 
ness, and  that  no  notice  is  taken  of  this  cotton  in  any  part  of 
the  account. 


DECEMBER  TERM,  1860.  109 

Hadley  v.  Rountrec. 

To  tlie  allegation,  as  to  the  cotton,  the  defendant  answers 
as  follows  :  "This  defendant  has  no  recollection  of  the  seven 
bales  of  cotton  having  been  committed  to  liis  hands,  and  does 
not  believe  it  to  be  true  ;  bnt  of  this,  the  defendant  is  certain,  if 
it  ever  came  to  his  hands,  the  complainant  received  the  pro- 
ceeds. There  would  appear  no  item  of  it  in  the  account  of 
1857,  since  the  transactions,  under  the  contract,  for  each  year, 
were  to  be  kept  distinct." 

To  the  charge  that  the  defendant  had  withheld  the  vouch- 
ers, the  defendant  answers,  and  admits  that  he  kept  them,  but 
says,  "of  this,  the  plaintiff  cannot  complain,  since  they  are  of 
no  service  to  him  whatever — consisting  of  receipts  for  money 
paid  to  tliird  persons — sheriff's  receipts  for  money  paid  on 
executions  against  him,  etc.,  tfec.  There  is  no  evidence  of 
debt,  whatever,  held  by  this  defendant  against  the  complain- 
ant among  these  vouchers,  and  they  are,  and  always  have  been 
open  to  the  inspection  of  the  complainant." 

The  conflict  between  the  last  recited  passage  of  the  answer 
and  several  items  of  charge  in  the  account  filed  by  the  de- 
fendant as  an  exhibit,  is  pointed  out  in  the  opinion  of  the 
Court. 

On  the  coming  in  of  the  answer,  the  Court  below  ordered 
the  injunction,  which  had  issued  in  the  case,  to  be  dissolved, 
and  the  plaintiff  appealed  to  this  Court. 

A.  M.  Zcnvis,  for  the  plaintiff. 
Dortch  and  Strong,  for  the  defendant. 

Pearson,  C.  J.  By  force  of  the  agreement,  executed  16th 
of  Decemher,  1856,  the  defendant  was  bound,  at  the  close  of 
the  year  1857,  to  render  an  account. 

From  the  answer  and  the  account  filed  as  an  exhibit,  we 
are  satisfied  that,  so  far  from  rendering  a  full  and  ftiir  account, 
as  he  Mas  bound  to  do,  the  defendant  induced  the  plaintiff  to 
execute  the  note,  mentioned  in  the  pleadings,  upon  the  foot- 
ing of  calculations  by  himself,  upon  loose  statements  and  de- 
tached papers,  without  time  for  examination  ;  so  that,  in  fact, 


110  IN  THE  SUPREME  COURT. 

Hadley  v.  Rountree. 

there  was  no  account  rendered,  and  nothing  done  by  the  par> 
ties,  considering  the  relation  in  which  they  stood,  which  can 
be  allowed  the  elFect  of  a  settlement. 

The  answer  is  unfair  and  evasive  in  many  respects  ;  for  in- 
stance :  to  the  charge,  that  when  the  defendant  took  posses- 
sion of  the  farm  and  mills,  there  were  on  hand,  among  other 
tilings,  seven  bales  of  cotton,  which  the  defendant  had  failed 
to  account  for ;  the  response  is :  "  This  defendant  has  no  re- 
collection of  the  seven  bales  of  cotton  having  come  into  his 
hands,  and  does  not  believe  it  to  be  true  ;  but  of  this,  the  de- 
fendant is  certain,  if  it  (the  seven  bales  of  cotton)  ever  came 
to  his  hands,  the  complainant  received  the  proceeds.  There 
would  appear  no  item  of  it  in  the  account  for  1857,  since  the 
transactions,  under  the  contract,  for  each  year  were  to  be  kept 
distinct." 

The  lirst  attempt  is  made  to  evade  this  charge,  by  treating 
the  seven  bales  of  cotton  as  of  no  more  importance  than  a 
stack  of  fodder,  about  which  the  defendant  could  not  be  ex- 
pected to  have  any  distinct  recollection  ! !  The  second  is,  by 
a  suggestion,  that  the  seven  bales  of  cotton,  being  of  the  crop 
of  1856,  did  not  form  an  item  in  the  account  of  1857,  as  the 
transactions  of  each  year,  by  the  contract,  were  to  be  kept 
distinct."  If  this  cotton  did  not  make  an  item  in  the  account 
for  the  year  1857,  it  certainly  would  not  in  the  account  for 
the  year  1858  !  !  But  supposing  this  cotton  to  have  been  on 
hand  on  the  1st  of  January,  1857,  and  in  regard  to  a  fact  of  that 
importance,  an  agent,  who  is  bound  to  render  an  account,  is 
not  at  liberty  to  leave  the  matter  in  doubt,  then,  it  did  pro- 
perly form  an  item  of  account  for  the  first  year,  as  much  as 
the  lumber  and  other  articles  on  hand  when  the  defendant 
took  charge  of  the  business,  and  the  loose  and  general  state- 
ments of  the  answer,  in  regard  to  it,  shows  the  sort  of  "  set- 
tlement" made  on  the  1st  of  January,  1858,  when  the  plain- 
tiff was  induced  to  execute  his  note. 

Again  ;  the  bill  charges  that  the  defendant  kept  possession 
of  all  the  vouchers,  receipts,  &c.,  on  the  footing  of  which,  the 
calculations  were  made  and  the  note  executed.    The  answer 


DECEMBER  TERM,  1860.  Ill 

Eborn  v.  Waldo. 

admits  this,  and  by  way  of  explanation,  say,  "  the  plaintiff 
cannot  complain,  since  they  are  of  no  service  to  him  what- 
ever— consisting  of  receipts  for  money  paid  to  third  persons — 
sheriff's  receipts  for  money  paid  on  execntions  against  him, 
&c.,  &c.  There  is  7io  evidence  of  debt,  whateve?',  held  hi/  the  de- 
fendant against  the  complainant  among  the  said  vouchei's,''^ 
and  yet,  in  the  account  filed  with  the  answer,  as  an  exhibit,  is 
this  item  :  "  Note  due  1st  January,  1857,  with  interest  to  let 
January,  1858,  $1718.33,  which  is  thus  charged  to  the  plain- 
tiff, but  is  held  by  the  defendant.  Again  ;  although  the  note 
is  executed  1st  January^  1858,  as  for  a  balance,  $14,815.91, 
then  due,  in  the  account,  set  out  for  the  purpose  of  showing 
tliat  balance,  there  are  several  charges  in  Januainj  and  Feb- 
ruary^ 1858,  e.  g.  cash  paid  Moses  Rountree  \^th  January^ 
1858,  $958.14 ;  cash  paid  Rountree  &  Co.,  4th  February, 
;'1858,  $370.21. 

It  is  unnecessary  to  make  further  specifications.  "  The 
judgment,  at  law,  ought  only  to  be  allowed  to  stand  as  a  se- 
curity for  whatever  may  be  found  to  be  due  to  the  defendant, 
upon  taking  an  account  between  the  parties,  on  the  footing  of 
principal  and  agent ;"  Franklin  v.  Ridenhour^  5  Jones'  P]q. 
422. 

There  is  error  in  the  decretal  order  dissolving  the  injunc- 
tion.    It  ought  to  be  continued  to  the  hearing. 

Per  Curiam,  Decretal  order  reversed. 


WILLIAM  C.  EBORN,  Adrrir.,  against  JOSEPH  WALDO   AND   AN- 
OTHER. 

There'jis  no  ground  for  going  into  a  court  of  equity  to  recover  back  damages, 
assessed  at  law,  in  behalf  of  a  defendant  to  an  action  of  replevin,  upon  the 
ground,  that  the  plaintiiThas  the  title,  and  has  brought  another  action  of 


112  m  THE  SUPREME  COURT. 

Eborn  v.   Waldo. 

replevin,  but  cannot  recover  back  those  damages  in  that  or  any  other  ac- 
tion at  law. 
Except  to  stay  waste  or  prevent  some  irreparable  injury,  the  writ  of  injunc- 
tion is  only  issued  as  ancillary  to  some  primary  equity,  which  the  bill  seeks 
to  enforce. 

Cause  removed  from  the  Court  of  Equity  of  Martin  county. 

The  plaintiff,  in  this  suit,  is  the  administrator  of  one  Abner 
Williams,  and  the  bill  alleges,  that  the  intestate,  Williams, 
being  much  impaired  in  mind  by  an  immoderate  use  of  spi- 
rits, was  induced  by  the  defendant,  Waldo,  to  make  him  a 
power  of  attorney  to  sell  a  negro  slave,  named  Jack,  belong- 
ing to  said  Williams,  and  afterwards,  a  few  days  before  the 
death  of  Williams,  the  defendant,  Waldo,  sold  the  negro  to 
one  Morrisett,  the  other  defendant  in  this  suit.  The  plaintiff, 
Eborn,  as  the  administrator  of  Williams,  brought  an  action 
of  replevin  against  Waldo  and  Morrisett,  to  recover  back  the 
glave,  and  under  that  writ,  the  slave  was  put  into  his  hands 
by  the  sheriff.  The  plaintiff  was  nonsuited  in  that  action  of 
replevin,  upon  a  technical  point,  and  a  jury  being  empannel- 
led,  assessed  defendants'  damages,  for  the  detention  of  the 
slave,  during  the  action,  at  $316,  and  execution  issued  for  the 
amount.  It  is  stated,  in  the  bill,  that  Waldo  is  totally  in- 
Bolvent. 

The  plaintiff  brought  another  action  of  replevin,  for  the 
slave,  against  the  same  parties,  which  was  pending  at  the  fil- 
ing of  this  bill. 

The  prayer  of  the  bill  is,  that  the  plaintiff  be  allowed  to 
pay  the  money  into  court  and  await  the  decision  of  the  action 
at  law,  now  pending,  and  for  an  injunction  to  restrain  the  col- 
lection of  the  execution  during  that  time. 

Upon  defendant's  filing  his  answer,  the  injunction  was  or- 
dered to  be  continued  to  the  hearing,  and  the  cause  being  set 
for  hearing  upon  bill  and  answer,  was  transferred  to  this 
Court  by  consent. 

Donnell,  Winston,  Jr.,  and  Warren,  for  the  plaintift'. 
Rodman,  for  the  defendants. 


DECEMBEH  TERM,  1860.  113 

Eborn  v.  Waldo. 

Manly;  -J.  If  we  suppose  in  the  second  action  of  replevin, 
which  the  bill  alleges  is  now  pending,  the  plaintiff  establish- 
ed his  right  to  the  slave  in  question,  and,  by  consequence,  es- 
tablished the  ])osition,  that  the  results  of  the  first  action  were 
not  in  accordance  with  the  rightsof  the  parties,  still,  the  bill 
is  without  equity. 

The  court  of  equity  does  not  interfere  to  prevent  the  enforc- 
ing of  a  recovery,  at  law,  for  errors  of  both  law  and  fact,  much 
less  will  it  interfere  to  prevent  tlie  operation  of  what  may  be  i-e- 
garded  as  a  hard  feature  in  the  law.  The  assessment  of  damages, 
after  the  nonsuit,  on  the  trial  of  the  first  action  of  replevin, 
was  in  strict  accordance  with  the  course  of  the  Court,  under  the 
law  regulating  that  action.  No  error  is  even  alleged,  and  the 
probability  that  a  second  action  may  result  differently,  is  not 
ground  for  arresting  the  execution  of  the  first. 

It  is  not  an.anomah'^  without  parallel,  that  property  upon 
one  trial,  is  established  to  be  in  a  party,  and  upon  a  second, 
found  to  be  in  the  other.  ISuch  inconsistency  results  from  the 
infirmity  of  hum^i  tribunals,  and  is,  for  the  most  part,  caus- 
ed by  the  blunder  or  laches  of  the  losing  party  on  the  trial  of 
the  first.  A  court  of  equity  is,  surely,  not  expected  to  pro- 
tect parties  from  the  consequences  of  their  blunders  and  neg- 
ligences at  law. 

There  were  open  to  the  plaintift',  in  this  case,  three  modes 
of  redress  :  an  action  of  trover^  of  detinue,  and  of  replevin, 
lie  chose  the  latter,  which  is  subject  to  the  incident,  that  if 
he  lose  the  suit  by  verdict  or  notisuit,  where  he  is  put  into 
possession  of  the  property  under  the  writ,  damages  shall  be 
assessed  against  him  for  the  detention.  The  recovery  com- 
plained of,  therefore,  arose  from  his  preference  of  a  form  of 
action,  and  failure  in  it  from  any  cause.  Whosover  adopts  it, 
is  supposed  to  foresee  its  perils,  and,  relying  upon  the  impreg- 
nable nature  and  easy  proof  of  his  title,  to  be  willing  to  en- 
counter the  hazards.  It  may  be  remarked,  in  this  connection, 
that  our  opinion,  as  to  the  want  of  equity  in  the  bill,  is  not  at 
all  dependant  upon  the  enquiry,  whether  the  damages  recov- 
ered in  the  first  action  may,  or  may  not  be  recovered  back  in 

8 


114  m  THE  STJPKEME  COUET. 

Eborn  v.  Waldo. 

the  second,  should  the  plaintiff  succeed.  For,  if  it  be  conce- 
ded that  they  may  be,  there  is  no  allegation  of  the  insolvency 
of  Morrisett,  whereby  the  judgment,  at  law,  would  be  of  no 
avail. 

This  brings  us  to  another  ground  of  objection  to  the  bill, 
viz.,  that  no  relief  is  sought  by  it,  which  can  constitute  a  cor- 
pus for  the  Court's  jurisdiction.'" 

It  is  hardly  necessary  for  us  to  refer  to  the  many  cases,  in 
which  we  have  found  it  necessary  to  declare,  recently,  that 
a  bill  for  an  injunction,  merely,  without  asking  other  relief, 
cannot  be  maintained,  except  in  cases  of  waste  and  irrepara- 
ble injury.  In  all  other  cases,  injunction  is  ancillary  j^j»rO(2C<§<s, 
and  is  only  proper  where  it  is  in  aid  of  a  primary  equity,  set 
forth  in  the  bill.     'No  such  equity  is  disclosed. 

It  is  not  a  bill  to  have  judgments  at  law,  set  off,  the  one 
against  the  other ;  for  there  is  no  prayer  to  that  efiect,  and 
no  allegation  of  defendant's  insolvency ;  which  is  the  basis  of 
equity  jurisdiction  in  such  cases;  Iredell  y.,Za7igsto?i,  1  Dev. 
Eq.  392.  Its  object  seems  to  be  to  obtain  a  reversal  by  the 
Court  of  Equity  of  the  judgment  in  the  first  action  of  replev- 
in, upon  the  ground,  that  there  is  no  relief,  at  law,  through 
the  subsequent  action  or  otherwise.  But  this  is  clearly  inad- 
missible. A  court  of  equity  never  allows  an  appeal  to  it  for 
a  new  trial  of  a  case,  which  depends  upon  legal  defenses,  and 
which  has  been  tried  at  law  ;  Pearce  v.  Nailing^  1  Dev.  Eq. 
289. 

Pek  Cukiam,  Bill  dismissed. 


:k  73n'^iv 


DECEMBER  TEUM,  1860.  115 


Havens  v.  Hoyt. 


JONATHAN  HAVENS  a(jfawM  JAMES  E.  HGYT  AND  OTHERS. 

Where,  it  appeared  that  a  contract  made  with  a  corporation  to  do  certain 
work,  was  fulfilled  to  the  satisfaction  of  the  board  of  directors  managing 
tlie  concerns  of  the  corporation,  and  tlvat  such  work  was  done  on  favorable 
terms,  and  was  beneficial  to  the  company,  it  was  held  that  a  court  of  equi- 
ty would  not,  on  the  allegation  of  one  of  the  corporators  that  there  was  a 
secret  agreement  between  one  of  the  directors  and  the  contractor  to  divide 
the  profits,  enjoin  the  payment  of  the  stipulated  compensation. 

Appeal  from  an  interlocutory  order  of  the  Court  of  Equity 
of  Beaufort  count3\ 

The  biil  is  iiled  by  the  plaintiff,  as  a  stockholder  in  the 
"  Washington  Gas-Light  Company,"  in  behalf  of  himself  and 
the  other  corporators  of  the  said  company,  against  the  defend- 
ants, as  president  and  directors  of  the  said  company,  and 
against  James  E.  Iloyt,  individually.  The  bill  alledges  that 
the  directors  appointed  James  E.  Hoyt,  one  of  their  number, 
to  make  a  contract  in  behalf  of  the  company  with  some  compe- 
tent and  responsible  person,  for  the  erection  of  the  necessary  gas- 
works, and  laying  the  necessary  pipes,  in  order  to  eflfectuate  the 
purpose  of  the  company,  and  that  the  said  Hoyt  did  make  a 
contract  for  the  constructing  of  the  said  gas-works  and  appurte- 
nances, with  one  Samuel  Merrill ;  and  that  he  was,  at  the  time^ 
secretly,  a  partner  with  the  said  Merrill,  and  was  to  have 
two-thirds  of  the  profits  arising  from  the  fulfillment  of  the  un- 
dertaking, and  tiiat  he  fraudulently,  and  by  combination  with 
Merrill,  and  for  their  mutual  gain  and  profit,  put  the  amount 
of  compensation  at  a  higher  sum  than  the  work  was  worth ; 
and  at  a  higher  price  than  the  said  Merrill  had  previously  of- 
fered to  do  it  at ;  that  the  work  was  nearly  finished,  and  that  the 
directors  were  about  to  pay  to  Merrill  and  his  secret  partner, 
Hoyt,  the  last  payment  due  for  the  construction  of  the  said 
works ;  that  the  portion  of  the  said  Hoyt's  profits  is  $800, 
and  thirteen  shares  of  the  capital  stock  of  the  company. 

The  prayer  is,  that  the  Court  will  declare  the  share  of  the 
said  profits  coming  to  Hoyt,  to  belong  to  the  company,  and 
direct  an  injunction  to  the  president,  secretary,  treasurer  and 


116  m  THE  SUPKEME  COUKT. 

Havens  v.  Hoyt. 

directors  of  the  said  company,  forbidding  them  from  paj'ing- 
over  the  said  sum  of  $800,  and  from  giving  certificates  for  the 
said  thirteen  shares  of  stock  to  the  said  James  E.  Hoyt,  and 
for  general  relief. 

The  answers  of  both  Hoyt  and  the  directors,  say  that  Mer- 
rill was  the  lowest  bidder ;  that  his  bid  was  $1000  less  than 
tjie  only  other  bid  made  for  the  work,  and  that  this  bid  was 
made  to  the  directors  themselves,  and  not  to  James  E.  Hoyt^ 
as  their  agent,  and  by  them,  as  a  board,  accepted ;  and  that 
all  that  Hoyt  had  to  do  with  it,  except  as  a  director,  was  to 
have  the  contract  with  Merrill  formally  executed  according  to 
the  terms  offered  and  accepted.  They  both  say  that  the  terms 
were  reasonable  ;  and  that  the  work  lias  been  done  satisfacto- 
rily, and  the  company  express  their  willingness  to  pay  the 
compensation  agreed  upon,  whenever  released  from  the  in- 
junction. 

Hoyt,  in  his  answer,  says  that  he  recommended  Merrill  to 
the  board,  and  informed  them  that,  as  he  was  without  means^ 
he  expected  to  assist  him  in  the  execution  of  the  contract,, 
both  as  to  advancing  tlie  money  necessary  to  buy  materials, 
and  in  procuring  him  security  to  perform  his  part  of  the  obli- 
gation;  that  these  assurances  were  made  as  inducements  for 
the  company  to  employ  Merrill ;  and  he  believed  that  it  was 
understood  by  the  company  that  he  would  participate  in  Mer- 
rill's contract ;  that  he  did  enter  into  an  agreement  with  tlie 
said  Merrill  to  furnish  all  the  money  necessary,  and  to  carry 
on  the  work,  to  go  on  to  the  cities  where  gas-works  were  in 
the  most  successful  operation,  and  obtain  information  as  to 
the  best  and  most  economical  manner  of  constructing  and  us- 
ing them  ;  that  he  not  only,  according  to  this  contract,  advanced 
the  money  necessary  to  begin  the  undertaking,  but  he  went 
to  the  northern  and  other  cities,  and  examined  diligently  into 
the  several  modes  of  erecting  and  working  gas-works,  and  ob- 
tained an  amount  of  information  which  enabled  Merrill  to  do 
the  work  cheaper  and  better  than  it  otherwise  could  have  been 
done  ;  and,  besides  this,  he  gave  constant  attention  to  the  work 
as  it  was  going  on,  and  he  says  his  part  of  the  profits,  (two- 


DECEMBER  TERM,  1860.  117 

Havens  v.  Hoyt 

thirds)  was  by  no  means  unreasonable.  The  company,  how- 
ever, say  they  were  not  aware  that  Hoyt  was  to  be  a  partner 
with  Merrill ;  but  they  say  the  work  was  well,  jiidieiou6l3''  and 
cheaply  done. 

On  the  coming  in  of  the  answers,  on  motion,  the  injunction 
was  ordered  to  be  dissolved,  and  the  plaintiff  appealed. 

Donnelly  Fowle  and  Warren,^  for  the  plaintiff. 
Rodman^  McRae  and  Carter^  for  the  defendants- 

Manly,  J.  Our  reflections  upon  the  questions  presented 
by  the  pleadings,  in  this  case,  have  conducted  us  to  the  con- 
clusion that  the  injunction  was  properly  dissolved  in  the  Court 
below. 

This  conclusion  has  been  induced,  chiefly,  by  the  purport  of 
the  answer  from  the  president  and  directors  of  the  company- 
This  body  express  their  entire  satisfaction  with  the  manner  in 
which  the  work  contracted  for,  has  been  executed,  and  an- 
nounce their  willingness  now  to  paj'^  for  the  same  according 
to  the  contract-  It  seems  to  us,  a  single  corporator  of  a  joint 
etock-company  has  not  the  power  to  repudiate  a  contract  made 
by  his  authorised  agents,  the  directors,  in  the  face  of  such 
avowals.  His  redress,  if  he  have  any,  is  against  the  board  of 
directors,  and  a  writ  restraining  them  from  the  fulfillment  of 
the  work  assigned  them,  ought  not  to  be  continued  without 
an  allegation,  at  any  rate,  of  irreparable  mischief.  Should 
the  directors  participate  in  awy  fraud,  or  be  guilty  of  gross 
siegligence  in  oflice,  to  the  prejudice  of  a  stockholder;  they 
might,  we  take  it,  be  liable  to  ham. 

The  two  positions  of  defendant,  Hoyt,  that  is,  in  the  board 
of  directors,  and  in  copartnership  with  Merrill,  are  not 
consistent.  Tiie  duties  appertaining  to  them,  respectively, 
may,  and  probably  will,  be  irreconcilable.  Hence,  they  can- 
not be  occupied  covertly,  without  subjecting  the  party  to  sus- 
picion, and  to  a  rigid  accountability.  But  upon  questions  aris- 
ing out  of  that  condition  of  things,  as  between  the  company 
and  director,  we  do  not  propose  to  enter,  and  have  referred  to 


118  m  THE  SUPEEME  COUET. 

Ei<^gs  V.  Swann. 

the  matter  only  in  order  to  obviate  any  misconstruction  of  our 
views. 

The  single  question  now  before  us,  is,  ought  the  injunction 
to  be  continued  at  the  instance  of  a  stockholder,  when  the  an- 
swer of  the  directors  of  the  company^  confirming  to  that  ex- 
tent the  answer  of  the  defendant,  Hoyt,  declares  that  theco-n- 
tract  was  an  advantageous  one  for  the  company,  was  at  the 
lowest  price  offered,  and  has  been  faithfully  executed ;  and 
when  the  company  express  their  wish  now  to  make  the  defer- 
red payment,  if  not  restrained  by  the  Court. 

There  is  no  error  in  the  interlocutory  order  appealed  from. 

Per  Curiam,  Decree  below  affirmed. 


JOHN  D.  RIGGS  AND  OTHERS  affcmist  C.  V.   SWANN,  Adm'r. 

There  is,  in  this  State,  no  statute  which  requires  that  the  declaration  of  a 
trust,  made  at  the  time  when  the  legal  title  to  land  or  slaves  passes  to  one, 
who  agrees  to  hold  in  trust,  shall  be  in  Avriting. 

[Sheltonv.  Sh€Uo7i,  5  Jones'  Eq.  292,  cited  and  approved. 

Cause  removed  from  the  Court  of  Equity  of  Craven  county. 

John  E.  Eiggs,  being  indebted  to  Seth  Muse  in  the  sum  of 
$702.50,  in  lS-i6,  made  a  deed  to  the  said  Muse,  for  two  negro 
slaves,  Abram  and  Joe,  as  security  for  that  sum,  and  at  the 
same  time  took  from  the  latter  a  deed  of  defeasance,  declar- 
ing the  terms  on  which  the  said  slaves  w'ere  conveyed  to 
Mnse,  the  substance  of  which  was,  that  whenever  the  said 
sum  of  8702.50,  with  interest,  was  paid.  Muse  should  recon- 
vey  the  said  slaves  to  Eiggs.  According  to  the  spirit  andl 
meaning  of  this  trust,  the  said  Eiggs  remained  in  possession 
of  the  slaves,  Abram  and  Joe,  until  1850.  On  the  14th  of 
January,  of  that  year,  in  order  to  pay  off  a  part  of  the  debt 
then  due  to  Muse,  it  was  agreed  between  them  two  and  oiae 


DECEMBER  TERM,  1860.  119 

Riggs  V.  Swann. 

Samuel  Jones,  who  was  the  brother  of  Rings'  wife,  that  Muse 
and  Riggs  should  both  join  in  a  conveyance  of  the  two  slaves 
to  Jones,  and  that  he  should  convey  one  of  them,  Joe,  to 
Muse,  absolutely,  at  the  price  of  six  hundred  and  fifty  dollars, 
which  was  to  be  credited  on  the  said  debt  of  S702.50. 

The  bill  alleges  that  a  part  of  the  above  arrangement  was, 
that  the  said  Samuel  Jones  was  to  have  the  use  of  Abram  at 
the  price  of  $125  a  j^ear,  until  his  work  should  amount  to  the 
balance  of  the  debt  due  Muse,  and  that  he  was  then  to  convey 
bim  to  the  plaintiffs,  the  children  of  the  said  John  I^,  Riggs  ; 
tliat  Riggs  had  put  other  jH-operty  in  his  hands  to  assist  in 
paying  off  this  balance,  and  that  apart  ofthe  arrangement  was, 
that  whenever  Riggs  should  stand  particularly  in  need  of  the 
said  slave,  Jones  was  to  let  him  come  and  assist  him  in  his 
work,  and  it  is  alleged  that  during  some  part  of  each  year,  as 
long  as  Jones  lived,  the  slave  was  in  Riggs'  possession.  The 
bill  further  alleges  that,  by  means  of  the  hires  of  Abram,  and 
the  other  means  put  into  Jones'  hands,  he  has  received  more 
than  enough  to  satisfy  the  whole,  principal  and  interest,  of 
the  debt  to  Muse,  and  still  hold  an  overplus,  to  which  the 
plaintiffs  are  entitled. 

Samuel  Jones  died  in  1855,  and  the  defendant  Swann,  ad- 
ministered on  his  estate.  The  prayer  of  the  bill  is  for  a  sur- 
render of  tlie  slave,  Abram,  and  an  account  of  the  hires  of 
the  slave,  and  of  the  other  property  put  into  the  hands  of 
defendant's  intestate,  Jones,  on  the  trusts  aforesaid. 

The  defendant  answered,  but  did  not  profess  to  know  any 
thing  of  his  own  knowlege,  but  he  insisted  on  the  statute  re- 
quiring contracts,  about  slaves,  to  be  in  writing,  as  a  bar  to 
plaintiff''s  equity.  There  were  proofs  taken,  which  sustained 
the  plaintiffs'  allegations.  The  cause  was  set  down  on  the 
pleadings  and  proofs,  and  sent  here  by  consent. 

J.  W.  Bryan,  for  the  plaintiffs. 
Iluhhard,  for  the  defendant. 

Peaeson,  C.  J.    The  bill  is  not  filed  for  the  purpose  of  ob- 


120  EST  THE  SUPEEME  COURT. 

Johnson  v.  Malcom. 

taining  specific  performance  of  an  agreement  to  convey  the 
slave,  mentioned  in  the  pleadings,  but  for  the  purpose  of  set- 
ting up  and  having  enforced,  a  trust  declared  in  favor  of  the 
plaintiffs,  bj  their  father,  at  the  time  the  title  was  passed  to 
the  intestate  of  the  defendant,  Swann. 

The  objection,  that  the  declaration  of  trust  was  not  in  writ- 
ing, and  was,  therefore,  void,  is  not  tenable.  There  is,  in  this 
State,  no  statute  which  requires  the  declaration  of  a  trust, 
made  at  the  time  the  legal  title  passes  to  one,  who  agrees  to 
hold  in  trust,  shall  be  in  writing.  This  question  is  settled  by 
the  case  of  Shelton  v.  Shelton,  5  Jones'  Eq.  292,  and  the  learn- 
ing on  the  subject,  is  there  fully  explained.  In  that  case,  the 
subject-matter  was  land  ;  in  this,  it  is  a  slave  ;  but  there  is  no 
distinction  between  land  and  slaves.  The  act  of  1819,  Rev. 
Code,  chap.  50,  sec.  11,  puts  contracts  to  sell  land  and  slaves 
on  the  same  footing,  and  has  no  reference  to  a  declaration  of 
trust,  as  is  shown  in  that  case.  The  objection,  based  on  the 
rules  of  evidence,  is  also  there  shown  to  have  no  bearing  on  the 
question.  In  short,  that  case  is  decisive  of  this  ;  and  it  is 
unnecessary  to  elaborate  the  subject  any  further. 

Pek  Cukiam.  Decree  for  the  plaintiffs. 


SAMUEL  JOHNSTON  agaimt  H.   C.  MALCOM  AND  WIFE  AND 
ANOTHER. 

A  deed  combining  the  two  characters  of  a  deed  of  trust  to  secure  creditors, 
and  a  deed  of  settlement  in  trust  for  a  wife  and  children,  may  operate  and 
have  eflfect  in  both  characters,  provided  it  has  been  duly  proved  and  regis- 
tered. 

A  deed  of  settlement,  in  trust  for  a  wife  and  children,  proved  and  registered 
three  years  after  the  date  of  its  execution,  was  held  to  be  valid  as  against 
creditors,  tvhose  debts  were  contracted  after  such  registration. 


DECEMBER  TERM,  1860.  121 

Johnson  v.  Malconi. 

Causk  removed  from  the  Court  of  Eqnit}"  of  Cabarrus  county. 

Samuel  N.  Black,  on  the  12th  of  December,  18i9,  convey- 
ed, by  deed,  to  Hugh  McAulay  and  his  heirs,  two  tracts  of 
laud  and  twelve  slaves,  in  trust,  to  secure  all  his  creditors, 
(naming  them  and  the  amount  of  their  delfts) ;  the  deed  then 
proceeds  :  "and  whereas,  the  said  S.  N.  Black  has,  unfortu- 
nately, contracted  the  habit  of  intemperance,  so  much  so,  that 
he  is  frequently  unqualified,  properly  to  discharge  and  man- 
age his  aifairs,  and  being  desirous  to  secure  a  good  and  re- 
spectable living  for  his  wife  and  children,  as  he  received  a 
large  share  of  his  property  by  his  wife,  it  is,  therefore,  under- 
stood, stipulated  and  agreed,"'  c'cc,  and  then  gives  her  the  sole 
and  separate  use  in  all  the  said  property,  not  required  in  the 
payment  of  the  trustor's  debts,  and  then  limits  the  remainder 
to  his  son,  the  defendant,  Calvin,  and  any  other  child  he 
might  have  by  their  marriage,  with  certain  contingent  limi- 
tations, in  the  case  of  her  death,  and  that  of  Calvin. 

This  deed  was  first  proved  before  the  clerk  of  Cabarrus 
county  court,  on  2nd  day  of  January,  1850,  and  was  shortly 
afterwards  registered. 

Afterwards,  at  April  Term,  1853,  of  Cabarrus  county  court, 
it  was  proved  in  open  court  by  the  subscribing  witness,  and 
was  ordered  to  be  registered,  and  was  registered,  on  the  8th 
of  June,  1853.  Previous  to  this  time,  all  the  debts,  owing 
by  Samuel  N.  Black,  had  been  paid  off.  On  the  28tli  of  Au- 
gust, Black  bought  of  the  plaintiff,  Samuel  Johnston,  a  negro 
woman  slave  and  two  small  children,  at  $775,  and  the  said 
Samuel  N.  Black,  his  wife,  the  said  Judith  E.,  both  signed  a 
note  for  the  price  of  the  slaves,  she  negotiating  and  conduct- 
ing the  whole  trade.  Suit  was  afterwards  brought  against 
Black  on  this  note,  and  he  dying  in  1853,  it  was  continued 
against  his  executrix,  the  said  Judith,  and  a  verdict  and  judg- 
ment taken  against  her  on  the  pleas  then  in  issue.  After- 
wards, on  a  sci.  fa.  against  her,  to  show  cause  why  she  should 
not  pay  this  judgment  out  of  the  assets  of  Samuel  N".  Black's 
estate,  in  her  hands,  she  pleaded  fully  administered  and  no 
assets,  which  pleas  were  found  in  her  favor.     Judith  Black 


122     '  IN  THE  SUPREME  COURT. 

Johnson  v.  Malcom. 

has  since  raarried  the  defendant,  Malcom,  and  this  bill  is 
brought  against  them,  and  against  her,  as  executrix,  and 
against  the  trustee,  McAulay,  and  Calvin  M.  Black,  the  only 
child  and  tenant  in  remainder,  under  the  said  deed,  seeking 
to  set  aside  the  deed  of  trust  as  to  tlie  settlement  to  the  feme 
defendant  and  her  son,  on  the  ground,  it  could  not  operate  in 
the  double  aspect  of  a  deed,  in  trust,  for  creditors,  and  a  deed 
of  settlement  for  the  sole  and  separate  use  of  the  wife  and  her 
children  ;  and  insisting  furthermore,  that,  not  having  been 
registered  within  six  montlis  after  it  was  made,  it  was  null 
and  void  as  to  creditors,  according  to  the  24th  section,  37th 
chapter  of  Revised  Code.  The  bill  also  prays  a  discovery  of 
assets  in  the  hands  of  the  said  Judith,  which  it  is  alleged  she 
fraudulently  conceals,  &c.,  and  seeks  to  subject  certain  pro- 
perty to  the  payment  of  his  debt,  on  the  further  ground,  that 
acting  under  a  power  of  attorney  from  her  trustee,  she  sold 
property,  conveyed  in  trust,  and  gave  the  proceeds  to  her 
husband,  with  which  he  bought  other  property,  w^iich  she 
now  claims  as  trust  property,  but  which  is,  in  fact  the  proper- 
ty of  her  late  husband,  Samuel  N.  Black.  The  answer  of  the 
defendants  is  full  as  to  tlie  state  and  condition  of  the  property, 
now  held  by  the  said  Judith  and  her  husband,  but  is  not  ger- 
main  to  the  questions  treated  of  in  this  Court. 

Foiole^  for  the  plaintiff. 
Boyden,  for  the  defendants. 

Pearson,  C.  J.  The  opinion  of  the  Court  is  with  the  de- 
fendants on  both  points,  made  on  the  argument. 

1st.  The  deed,  executed  by  Samuel  Black  to  McAulay,  12th 
December,  1849,  combines  the  character  of  two  instruments — 
a  deed  of  trust  to  secure  creditors,  and  a  deed  of  settlement 
in  trust  for  a  wife  and  children,  and  there  is  no  reason  why 
it  ma}^  not  operate  and  have  force  and  eflect  in  both  charac- 
ters, provided  the  ceremony,  which  the  law  requires  in  re- 
spect to  attestation,  probate  and  registration  is  duly  complied 
with. 


DECEMBER  TERM,  1860.  123 


Johnson  v.  Malcom 


An  analogy  may  be  found  in  the  case  of  a  will,  where,  most 
usually,  the  same  instrument  contains  a  will  of  personalty, 
according  to  the  common  law,  and  a  will  land,  according  to 
the  statute,  and  no  objection  was  ever  made,  although,  orig- 
inally, the  mode  of  attestation  was  diiferent,  and  the  probate 
of  one  was  required  to  be  in  the  courts  of  law,  and  of  the 
other,  in  the  ecclesiastical  courts.  The  probate  of  the  instru- 
ment, in  one  character,  had  no  effect  upon  its  validity  in  the 
other. 

In  respect  to  the  probate  and  registration  of  the  instrument, 
now  under  consideration,  in  its  character  of  a  deed  of  trust  to 
secure  creditors,  no  question  is  presented.  This  Court  is  of 
opinion,  tliat  in  its  character  of  a  deed  of  settlement,  in  trust 
for  a  wife  and  children,  the  probate,  in  open  conrt,  at  April 
Term,  1853,  and  its  registration  on  the  8th  of  June,  1853, 
made  it  valid,  not  only  between  the  parties,  but  as  against  cred- 
tors,  whose  debts  were  contracted  afterwards,  and  that  it  was 
void  only  as  against  creditors,  whose  debts  were  in  existence, 
or  in  contemplation,  at  the  date  of  such  registration.  This,  we 
believe,  has  been  the  universally  received  construction  of 
Rev.  Statutes,  chap.  37,  sec.  29,  and  Revised  Code,  chap.  37, 
sec.  21:,  and  we  are  satisHed,  upon  a  consideration  of  the  pur- 
poses of  these  enactments,  that  this  is  the  proper  construction. 
A  mere  voluntary  deed  to  a  stranger,  without  any  oncntorious 
consideration  whatever,  is  allowed  to  have  this  effect. 

2nd.  As  the  bill  of  sale  for  the  slaves,  which  was  executed  by 
the  plaintiff,  passed  the  title  to  Black,  and  his  estate  has  had 
the  benefit  of  the  purchase,  the  signature  of  Mrs.  Black  must 
be  treated  as  having  been  done  in  the  mere  character  of  her 
husband's  security,  and  can  derive  no  aid  from  the  fact,  that 
McAulay,  the  trustee,  had  given  her  a  power  of  attorney  to 
act  as  his  agent,  in  respect  to  the  trust  property.  So,  the  case 
is  that  of  a  feme  covert  executing  a  bond  without  making  it  a 
specific  cliarge  on  her  separate  estate,  and  without  the  con- 
currence of  the  trustee,  and  falls  under  the  doctrine  announc- 
ed by  this  Court ;  Imox  v.  Jordan,  5  Jones'  Eq.  177. 

There  will  be  a  decree  declaring  the  opinion  of  the  Court 


124  IN  THE  SUPREME  COUET. 


Weisman  v.  Smith. 


on  these  points  and  subject  thereto,  the  plaintiff  may  take  an 
order  of  reference  for  an  account. 

Per  Curiam,  Decree  accordingly. 


JOSEPH  WEISMAX  against  PENELOPE  SMITH  AND  OTHERS. 

Whether  a  court  of  equit}'^  would  interfere  to  compel  a  specific  performance 
of  a  contract  between  two  joint  owners  of  land  that  neither  should  sell 
without  first  giving  the  other  the  refusal  of  it.      Quere7 

A  sale  of  a  part  of  the  interest  of  one,  by  the  consent  of  both  of  two  joint 
owners  of  laud,  as  to  Avhich  there  was  a  right  of  pre-emption,  without  any 
provision  as  to  its  future  exercise,  justifies  the  inference  that  such  right  was 
intended  to  be  abandoned. 

On  the  death  of  one  of  two  joint  owners  of  land,  between  whom  the  right  of 
pre-emption  existed,  it  was  held  that  such  right  cannot  be  enforced  specifi- 
cally against  his  devisees. 

Where  the  defendant  has  an  distinct  equity,  he  must  set  it  up  by  a  cross-bil" 
or  by  an  original  bill;  but  he  cannot  have  the  benefit  of  it  by  an  answer. 

After  the  death  of  one  of  the  members  of  a  copartnership,  the  statute  of  lim- 
itations begins  to  run  in  favor  of  his  personal  representative  against  a  claim 
to  have  an  account  of  profits  received  by  him. 

Cause  removed  from  the  Court  of  Equity  of  Wake  county. 

The  plaintiff,  Weisman,  and  Richard  Smith,  deceased,  on 
21st  of  January,  1S43,  entered  into  an  agreement  in  writing, 
to  purchase  and  work,  in  copartnership,  black  lead  or  plum- 
bago mines  in  the  county  of  Wake.  Smith,  by  said  agree- 
ment, was  to  advance  the  requisite  funds  to  purchase  the 
lands  containing  the  mineral,  to  an  amount  not  exceeding 
$10,000,  and  as  soon  as  the  lands  were  purchased.  Smith  was 
to  convey  one  half  thereof  to  Weisman  in  fee,  and  Weisman 
was  to  pay  Smith  $3,500  at  the  expiration  of  five  years  with- 
out interest,  for  his  moiety,  for  which  the  plaintiff  pledged  his 
interest;  and  should  the  purchase  of  the  necessary  lands  ex- 
ceed $10,000,  the  excess  should  be  a  charge  upon  the  profits 


DECEMBER  TERM,  1860.  125 


Weisman  v.  Smith. 


of  the  concern.  As  soon  as  the  purchases  were  made,  the  par- 
ties were  to  commence  the  business  of  raising,  preparino-  for 
market,  and  selling  the  mineral  under  the  name  and  style  of 
"Smith  and  Weisman,"  and  the  plaintiff  was  to  lend  his  con- 
stant attention  to  the  business,  personall3\  The  covenant  con- 
cludes thus,  "  And  it  is  further  covenanted  as  follows,  to  wit, 
that  if  either  part3^  shall,  at  any  time,  wish  to  withdraw  from 
the  said  concern,  he  shall  not  be  at  liberty  to  sell  or  convey 
his  share  or  moiety,  or  any  part  or  portion  thereof  to  any  oth- 
er person,  before  he  shall  liave  given  to  his  copartner  at  least 
twelve  months  notice  thereoi',  and  to  whom  the  refusal  to  pur- 
chase shall  always  be  given  within  tliat  time.  And  the  par- 
ties do  severally  bind  themselves,  their  heirs,  executors,  ad- 
ministrators or  assigns,  to  the  strict  performance  of  this  last 
article." 

Smith,  in  pursuance  of  this  contract,  bought  a  large  quan- 
tity of  land  lying  mostly  in  separate  and  disconnected  parcels 
for  which  he  took  deeds  in  fee  simple  to  himself,  for  which  he 
paid  an  excess  over  ten  thousand  dollars  of  about  $6000,  and 
tiie  bill  charges  that  he  cut  fire  wood  and  received  rents  from 
the  said  land,  up  to  the  time  of  his  death,  in  1852,  and  after- 
wards, his  devisees,  the  defendants,  Penelope  and  Mary  Ann,, 
did  the  same,  until  they  sold  the  whole  of  their  interest  in  the 
premises,  in  April,  1854.  The  plaintiff  also  charges  that  the 
said  Smith  obtained  large  quantities  of  the  mineral,  plumba- 
go or  black  lead,  which  he  sold  in  the  northern  markets,  and 
for  which  he  received  the  money,  at  high  prices,  but  did  not 
account  with  the  plaintiff  for  any  part  of  it. 

In  October,  1849,  Weisman,  with  the  consent  of  Smithy 
agreed  to  sell  to  one  James  Hepburn,  one  half  of  his  interest 
in  the  said  mines,  to  wit,  one  fourth  part  thereof,  at  the  sum; 
$10,000,  and  on  receiving  the  sum  of  $3,500  in  cash,  and 
$6,500  in  a  note  payable  to  Weisman,  and  endorsed  by  him 
to  Smith,  he,  Smith,  made  to  Weisman  and  Hepburn,  a  deed 
for  one  half  of  all  the  several  tracts  of  land  that  had  been 
purchased  by  him  for  the  purposes  of  mining  as  stated,  ex- 
cept  two  small  tracts  hereafter  referred  to,  and  took  fromi 


126  IN  THE  SUPREME  COURT. 

-4P — • _ — ~ — _ — - — _ —  '  ■     II 

Weisman  v.  Smith. 

them  a  mortgage  of  their  interest  to  secure  the  said  sum  of 
$6,500.  This  latter  sum,  Smith  claimed  for  advancements 
made  by  him,  over  and  above  the  sum  of  $10,000  which  he 
was  bound  by  the  contract  to  invest.  This  sum  of  $6,500  has 
since  been  ]>aid  by  Hepburn  to  the  assignees  of  Smith. 

In  the  month  of  April,  1854,  James  Hepburn  sold  his  in- 
terest in  these  mining  lands  to  AVilliam  H.  Winder,  of  the 
city  of  Philadelphia,  and  subsequently,  to  wit,  on  20th  of 
April,  1854:,  Mrs.  Penelope  Smith  and  Miss  Mary  Ann  Smith, 
the  devisees  of  the  said  Richard  Smith,  sold  their  interest,  to 
wit,  one  half  of  the  said  land  to  the  said  William  H.  Winder, 
and  he  took  a  deed  in  fee,  for  the  same.  Winder  and  others, 
obtained  a  charter  from  the  Governor  of  the  State  in  1854^5, 
for  an  incorporated  company,  called  the  Ilerron  Mining  Com- 
pany, and  the  lands  and  mines  were  worked  afterwards  by 
that- company.  The  bill  alledges  that  previously  to  the  sale 
to  Winder,  the  plaintiff  proposed  to  Mrs.  Smith  and  her 
daughter,  to  take  their  share  of  the  lands  and  mines  accord- 
ing to  the  provisions  of  the  covenant,  and  offered  them  a  full 
price  for  them,  but  they  refused  to  let  them  have  them  ;  that 
he  has  made  offers  to  Winder,  and  to  the  Herron  Mining 
Company  to  pay  them  what  they  gave  for  the  premises,  and 
take  the  whole  propertj'-,  but  they  have  refused  to  comply 
with  this  request. 

The  bill  was  filed  on  24th  of  September,  1857,  and  insists 
tliat  the  plaintiff  is  entitled,  according  to  the  terms  of  the  con- 
tract of  1843,  to  have  his  election  to  take  the  whole  of  the 
lands,  &c.,  purchased  from  the  Smiths  by  Winder,  and  sold 
to  the  corporation  at  the  price  the  latter  gave  for  them  ;  and  he 
now  elects,  and  prays  the  Court  to  decree  him  a  conveyance 
of  the  premises  by  the  said  Herron  Mining  Company ;  also, 
an  account  from  the  executors  of  R.  Smith,  of  his  share  of 
the  rents  and  profits  derived  from  the  property  by  him  in  his 
life-time,  and  an  account  of  tlie  same  from  Mrs.  Smith  and  her 
daughter,  while  they  had  and  used  them ;  also,  from  Winder 
and  the  Herron  Mining  Company,  since  they  have  come  into 
possession. 


DECEMBER  TERM,  1860.  127 

Weisman  v.  Smith. 

The  answers  of  the  several  defendants  were  filed,  but  it  is 
not  necessary  to  notice  more  of  their  contents,  than  that  they 
insist  on  the  statute  of  limitations  in  bar  of  the  accounts  ask- 
ed for,  ail  the  time  pleading  three  years  before  the  filing  of 
the  plaintiff's  bill.  Also,  Mrs.  Smith  and  her  daughter  say 
that  at  the  time  of  the  sale  to  Hepburn,  it  was  expressly 
agreed  that  the  mill  and  mill-site  should  remain  the  property 
of  Smith  exclusively,  and  should  be  excepted  from  the  con- 
veyance by  him  to  Weisman,  and  Hepburn,  and  that  by  the 
agreement  of  all  parties,  an  instrument  of  writing  was  drawn 
up  to  that  eft'ect,  which  the  plaintiff"  promised  to  sign,  but 
that  he  suddenly  left  the  city  of  Raleigh  and  returned  to 
Philadelphia,  and  that  another  portion  of  four  acres  was  to 
be  exempted  for  a  church. 

Graham  and  G.  ^V.  Haywood^  for  the  plaintiff". 
Mason  and  B.  F.  Moore,  for  defendant  Winder. 
Miller,  for  the  Smiths. 

Pearson,  C.  J.  1.  The  plaintiff'  is  not  entitled  to  a  speci- 
fic performance  of  that  part  of  the  agreement  executed  by 
him  and  Richard  Smith,  on  21st  of  January,  1843,  in  which 
it  is  stipulated  that  if  either  party  should  wish  to  sell,  he  shall 
give  the  other  "  the  refusal,"  or  what  was  aptly  called,  on  the 
the  argument,  "  the  right  of  pre-emption." 

We  are  inclined  to  the  opinion,  that  a  court  of  equity  would 
not  have  interfered  to  compel  a  specific  performance  between 
the  original  imrties.  Such  stipulations  are  against  public  po- 
licy, and  operate  in  restraint  of  alienation ;  for  which  reason, 
they  are  not  favorites,  cither  in  courts  of  law  or  courts  of 
equity.  At  law,  an  understanding  of  this  nature  is  not  treat- 
ed as  a  grant  of  an  easement  or  privilege,  or  as  a  condition, 
so  as  to  be  attached  to  the  land,  in  res])ect  to  which  it  is  made, 
but  merely  as  a  collateral  personal  covenant,  for  a  breach  of 
which,  the  party  may  be  entitled  to  an  action  for  damages ; 
Blount  V.  Ilarvey,  6  Jones'  Rep.  186 ;  Keppel  v.  Bailey,  2 
Mylne  and  Keene,  577,  where  it  is  said,  "  incidents  of  a  nov- 


128  m  THE  SUPREME  COURT. 


Weisraan  v.  Smith. 


el  kind  cannot  be  attached  to  property  at  the  fancy  or  caprice 
of  any  owner,"  because  "it  is  clearly  inconvenient  to  the  sci- 
ence of  the  law,  that  such  a  latitude  should  be  given  ;"  "  great 
detriment  would  arise,  and  much  confusion  of  riglits,  if  par- 
ties were  allowed  to  invent  new  modes  of  holding  and  enjoy- 
ing real  property,  and  to  impress  on  their  lands  a  peculiar 
character,  which  would  follow  them  into  all  hands,  however 
remote." 

Considerations  of  this  kind  apply  as  forcibly  in  equity  as  at 
law ;  consequently,  the  Court  should  not  treat  such  agree- 
ments as  creating  a  trust,  binding  the  parties  and  privies  to  a 
specific  performance,  but  should  leave  the  party  aggrieved  by 
breach  thereof,  to -his  remedy  at  law.  If  one  takes  land  in  fee 
simple,  and  covenants  not  to  alien,  a  court  of  equity  will  not 
interfere  by  injunction  to  prevent  him  from  doing  so,  but  will 
leave  the  party  to  his  remedy  at  law.  This  is  clear.  The 
covenant  under  consideration  is,  in  effect,  a  modified  agree- 
ment not  to  alien,  and  falls  under  tlie  like  reason. 

We  are  also  inclined  to  the  opinion,  that  the  effect  of  the 
sale  by  Weisman  to  Hepburn,  with  the  concurrence  of  Smith, 
of  one  half  of  his  intei'est  in  the  lands,  and  of  the  deed  exe- 
cuted by  Smith  to  Weisman  and  Hepburn,  vesting  in  them, 
as  tenants  in  common,  the  legal  right  to  one  undivided  moie- 
ty of  the  lands,  made  such  a  change  in  the  relation  of  the  par- 
ties, as  to  annul  and  supercede  the  stipulation  which  had  been 
made  between  Weisman  and  Smith,  in  respect  to  the  right  of 
pre-emption.  It  was  based  on  the  footing  of  the  copartner- 
ship, and  was  an  emanation  of  the  idea  entertained  bjMhe 
parties  of  a  "  grand  monopoly "  in  respect  to  the  mines, 
which  suggested  that  if  one  of  the  parties  should  ever  wish 
•'  to  withdraw  from  the  said  concern,"  it  was  highly  probable 
that  the  other  party  would  desire  to  become  the  owner  of  the 
whole,  and  the  stipulation  was  made  to  enable  him  to  possess 
himself  of  the  monopoly.  The  firm,  which  was  known  under 
the  name  and  style  of  "Smith  and  Weisman,"  was  dissolved 
by  the  transactions  above  referred  to,  and  it  is  fair  to  infer 
that  the  idea  of  a  monopoly  was  abandoned  and  passed  away 


DECEMBER  TERM,  1860.  129 

WeisraaD  v.  Smith. 

when  the  firm  ceased  to  exist ;  for  no  allusion  is  made  to  this 
stipulation  in  Smitli's  deed,  and  Hepburn  is  not  required  to 
become  a  party  to  it,  although  he  acquired  one-fourth  of  the 
land  as  a  tenant,  in  common.  All  mutuality  was  in  this  way 
destroyed,  and  the  fiillilment  of  the  stipulation,  was,  in  fact, 
rendered  impracticable.  Was  Weisman,  owning  one-fourth, 
entitled  to  a  pre-emption  right  in  rcsi^ect  to  the  whole  of 
Smith's  lialf  ?  Or  only  to  one-half  of  that  half?  Did  Weis- 
man communicate  to  Hepburn  an  interest  in  tlie  pre-emp- 
tion, so  as  to  give  him  the  right  as  to  one-fourth,  both  in 
respect  to  Smith  and  Weisman  ?  Was  Smith  bound  to  f)ffer 
the  refusal  to  Weisman  alone  ?  Or  to  Weisman  and  Hepburn 
jointly?  Or  to  them  severally,  eacli  one-fourth?  And,j9e7' 
i-onti'd^  had  Smith  a  pre-emption  right  as  against  Weisman 
alone,  or  Weisman  and  Hepburn  jointly  ?  Or  the  two  sever- 
ally ?  The  parties  have  not  enabled  the  Court  to  answer  these 
(|uestions.  The  absence  of  any  provision  for  tliis  new  state  of 
things  raises  a  presumption  that  the  stipulation  in  question 
was  treated  and  considered  by  all  parties  as  being  defunct. 

We  are  of  opinion,  that  upon  the  death  of  Mr,  Smith,  the 
stipulation  did  not  follow  the  land  and  bind  his  devisees  in 
respect  to  it,  so  as  to  entitle  the  plaintiff  to  enforce  it  against 
them  or  their  assignees.  It  could  only  have  this  effect  by 
giving  to  it  the  character  of  a  trust.  AVe  can  conceive  of  no 
ground  to  clothe  it  with  this  character.  On  the  contrary,  the 
considerations  above  suggested,  tend  to  show  that  the  Court 
would  not  allow  it  to  be  so  treated,  except  as  between  the  ori- 
ginal parties,  even  if  an  intention  to  make  it  a  trust,  had  been 
expressed  by  tiie  terms  of  the  agreement. 

The  clause,  whereby  the  parties  "bind  themselves,  their 
heirs,  executors,  administrators  and  assigns,  to  the  strict  ob- 
servance of  this  article,"  has  no  further  effect  than  the  same 
words  added  to  a  bond  for  the  payment  of  money.  It  may 
be  that  the  plaintiff  can  maintain  an  action  at  law  against  the 
personal  representatives  of  Smith  or  his  real  representatives — 
that  is,  his  devisees,  for  breach  of  this  covenant,  but  there  is  no 
ground  on  which  he  can  treat  a  purchaser  as  holding  in  trust 

9 


130  m  THE  SUPREME  COUET. 

Weisman  v.  Smith. 

for  him  ;  because  no  trust  was  created  in  his  favor  by  the  ori- 
ginal agreement. 

2.  The  plaintiff  is  entitled  to  a  declaration  in  the  decree, 
that  he  owns  one-fourth  of  the  legal  and  equitable  estate  in 
all  the  lands  set  out  in  the  deed  executed  by  Smith  to  Weis- 
man and  Hepburn,  1st  of  Februarj^,  1850,  free  from  an  in- 
cumbrance or  lien,  by  reason  of  the  mortgage  executed  by 
himself  and  Hepburn  to  Smith,  and  to  a  further  declaration 
that  the  mortgage  debt  has  been  satisfied,  and  to  a  decree  for 
a  reconveyance.  This  equity  was  yielded  by  the  defendants 
on  the  argument,  except  as  to  four  acres  of  land  which,  it  is 
alleged  are  given  to  the  church,  and  four  acres  on  which  the 
mill  is  situated.  In  respect  to  which  they  allege  a  cross  equi- 
ty to  have  a  specific  performance  of  an  agreement  to  convey 
the  same  to  Smith,  executed  by  Weisman  and  Hepburn. — 
Whether  the  defendants  will  be  able  to  establish  the  cross 
equity,  or  whether  it  can  be  met  by  the  plaintiff  on  the  ground 
that  it  was  obtained  without  consideration,  and  by  the  undue 
exercise  of  the  influence  which  Smith  held  over  them  by  rea- 
son of  his  being  a  creditor,  and  having  them  in  his  power,  or 
will,  at  all  events,  be  allowed  oul}'^  to  the  extent  of  giving  a 
lien  on  the  mill  as  a  security  for  the  amount  expended  by 
Smith  in  the  erection  of  the  mill,  are  questions  into  which  we 
will  not  now  enter,  because  they  are  not  presented  in  a  prop- 
er manner  by  the  pleadings.  Where  the  defendant  has  an 
^quit}'^,  he  must  set  it  up  by  a  cross  bill.  This  is  a  well  set- 
tled rule  of  the  court.  The  decree,  however,  in  this  case 
will  be  so  framed  as  to  be  without  prejudice  to  this  equity  of 
the  defendants,  so  as  to  enable  them,  if  so  advised,  to  seek  to 
have  it  set  up  by  an  original  bill,  when  the  matter  can  be  ful- 
ly presented  without  being  attended  by  the  complication  and 
confusion  that  a  cross  bill  filed  in  this  case  would  necessarily 
have  produced,  considering  the  very  voluminous  pleadings 
and  exhibits  relevant  to  the  several  equities  which  the  plain- 
tiff seeks  to  enforce. 

3.  The  plaintiff's  right  to  an  account  against  the  personal 
representatives  of  Smith,  is  barred  by  the  statute  of  limita- 


DECEMBER  TEKM,  1860.  131 


Weisman  v.  Smith. 


tions.  It  is  true,  tliat  as  between  copartners  and  tenants  in 
common,  the  statute  of  limitations  does  not  run,  until,  as  Hen- 
DEKSON,  C.  J.  expresses  it  in  Wagsktff  v.  Smith,  2  Dev.  Eq, 
264,  "  there  is  a  cesser  of  the  privity  or  connection  from  which 
the  accountability  arises."  In  that  case,  and  in  Northcott  v. 
(Jasper,  6  Ired.  Eq.  303,  the  relation  of  the  parties  was  not 
changed,  but  in  our  case,  on  the  death  of  Smith,  there  was  a 
change  in  the  relation  of  the  parties.  Smith,  of  course,  could 
no  longer  be  a  copartner,  or  a  tenant  in  common,  and,  conse- 
quently,  an  action  accrued  for  or  against  his  personal  repre- 
sentatives to  have  an  account  of  the  profits  received,  which 
action  is  barred  by  the  statute;  for,  although  his  wife  and 
daughter  acquired  his  estate,  as  devisees,  the  estate  passed  to 
them  as  assignees,  and  the  relation,  which  had  previously  ex- 
isted between  him  and  the  plaintiff,  was  of  course  at  an  end. 
So,  the  right  of  action  in  respect  to  the  profits  accrued  at  that 
time;  for  there  was  "a  cesser  of  his  privity  or  connection  as 
tenant  in  common,"  a  new  relation  then  commenced  between 
him  and  the  devisees,  and  the  case  is  the  same  as  if  one  ten- 
ant in  common  sells.  That  is,  a  cesser  of  his  relation  as  tenant 
in  common  ;  and  a  cause  of  action  then  accrues  to  all  of  the 
tenants  in  resyiect  to  the  arrearages  of  profits,  and  a  new  rela- 
tion begiiis  between  the  other  tenants  and  the  purchaser. 

The  bill  was  filed  oii  24th,  Sept.  1857.  Mrs.  Smith  and 
Miss  Mary  sold  to  Winder  20th  of  A2wil,  1854,  at  which  time 
there  was  a  cesser  of  the  connection  with  the  plaintifi"  as  ten- 
ant in  common.  So,  the  plaintifi^'s  right  to  an  account  against 
them  is  barred,  except  from  the  24th  of  Sept.  1854.  For  all 
profits  or  moneys  received  for,  or  on  account  of,  or  out  of  the 
the  lands,  after  tliat  date,  he  is  entitled  to  an  account  as  against 
Mrs.  Smith  and  Miss  Mary,  and  the  defendant  Winder,  and 
the  Herron  Mining  Company.  How  far  the  fact  that  the  de- 
velopements  of  lead  ore  cropped  out  in  so  many  places,  and 
the  quantity  of  wood  was  so  great  as  to  leave  ample  room 
for  all  the  tenants  in  common  to  come  and  take  their  share, 
distinguishes  that  species  of  profits  from  the  receipt  of  rent, 
either  in  money  or  produce  paid  by  the  lessees  of  the  several 


132  m  THE  SUPREME  COURT. 

Moore  v.  Moore. 

houses,  and  cleared  pieces  of  ground  in  the  many  tracts  of 
land,  is  a  question  which  inay  be  presented  by  exception  to 
the  account. 

Per  Cukiam,  Decree  accordingly. 


DAVID  MOORE  AND  OTHERS  againsl  DANIEL  MOORE,  Executor. 

In  determining  whether  a  limitation  of  property  does,  or  does  not  amount  to 
a  perpetuity,  regard  is  had  to  possible,  not  actual  events,  and  the  fact,  that 
the  gift  might  have  included  objects  too  remote,  is  fatal. 

Cause  removed  from  the  Court  of  Equity  of  Caldwell  county. 

Jesse  Moore  died  in  the  said  county,  leaving  a  last  will  and 
testament,  in  which,  after  making  various  specific  devises  and 
bequests,  the  testator  proceeds:  "Item  7.  My  will  is,  that 
all  the  rest  of  my  property,  of  every  description,  and  my 
money,  be  kept  by  my  executor,  wliomsoever  I  may  appoint ; 
it  shall  be  kept  as  a  fund.  Should  any  of  my  children,  or 
grandchildren,  come  to  suffering,  in  any  other  way,  save  by 
idleness,  drunkenness,  or  any  thing  of  the  kind,  so  as  to  be- 
come an  object  of  charity,  I  want  the  said  executor  to  give  a 
part  of  this  to  such  child  or  grandchild." 

The  bill  is  filed  by  the  next  of  kin  of  the  testator,  and  prays 
for  a  distribution  of  this  fund  amongst  them,  upon  the  ground, 
that  the  bequest  is  an  attempt  to  create  a  perpetuity,  and,  there- 
fore, A^oid. 

The  cause  being  set  for  hearing  upon  bill,  answer  and  ex- 
hibit, was  tranferred  to  this  Court  by  consent. 

Mitchell,  for  the  plaintiffs. 
No  counsel  for  the  defendant. 


DECEMBER  TERM,  1860.  133 


^Moore  v.  Moore. 


Battle,  J.     Upon  the  best  consideration,  which  we  have 
been  able  to  give  to  this  case,  we  are  clearly  satisfied,  that 
the  bequest,  contained  in  the  7th  clause  of  the  testator's  will 
cannot  be  sustained.     It  is  an  attempt  to  create  a  fund  and 
keep  It  in  existence,  for  a  purpose,  which  may  not  be  finally 
accomplished  for  a  period  longer  than  that  which  the  rale 
agamst  perpetuities,  will  allow.     Whether  the  administration 
ot  this  fund  by  the  executor,  as  "treasurer,"  is  to  be  deemed 
a  power  or  trust  in  him,  the  necessary  effect  of  it  will  be,  that 
the  fund  will  be  tied  up  and  kept  from  commerce  during  the 
entire  lives  of  the  testator's  children  and  grandchildren,  which 
It  IS  manifest  may  be,  and  probably  will  be,  much  longer  than 
a  lite,  or  lives  in  being  at  the  testator's  death,  and  twenty-one 
years  atterwards.     TJiis  makes  the  bequest  void,  althought  it 
might  iiappen  that  all  the  grandchildren  would  die  within 
twenty-one  years  after  the  death  of  all  the  testator's  children 
lu  a  case  of  this  kind,  i^  is  well  known  to  be  "an  invariable 
principle  in  applying  the  rule,  under  consideration,  that  re- 
gard IS  had  to  possible,  not  actual  events,  and  the  fact,  that 
the  gift  might  have  included  objects  too  remote,  is  tatal  to  its 
validity  irrespectively  of  tlie  event."     In   the  present  case,  it 
IS  plain  that  the  gift  of  the  fund  mlgJd  be  needed  by  the  ob- 
jects of  the  testator's  bounty,  for  some  time  after  the  time  al- 
lowed by  tlie  rule  against  perpetuities,  that  is,  after  twenty- 
one  years,  from  the  death  of  the  last  survivor  of  the  testator's 
children  ;  see  1  Jarman  on  Wills,  227,  et  seq.,  where  the  sub- 
ject IS  tully  discussed  and  explained  ;  see  also  2  Rop.  on  Leo- 
298,  et  seq.  °' 

In  deciding  against  the  validity  of  the  bequests,  upon  the 
ground,  that  it  violates  the  settled  rule  on  the  subject  of  per- 
petuties,  we  do  not  intend  to  give,  or  intimate  an  opinion, 
whether  the  objects  of  the  Intended  chairity  are  sufiiciently 
dcfamte,  or  the  manner  in  which  they  are  to  be  ascertained, 
IS  pointed  out  witli  sufficient  precision. 

The  plaintiftk  are  entitled  to  a  decree,  according  to  the 
prayer  of  the  bill.  '' 

Pee  Cueiam,  Decree  for  the  plaintifls. 


134:  m  THE  SUPEEME  COUKT. 


Knight  V.  Knio^ht. 


W.  H.  KNIGHT,  Mc'r  against  F.  H.  KNIGHT  AND  WIFE  AND 
OTHERS. 

Where  a  testator  gave  property,  real  and  personal  specifically,  and  then  de- 
vised and  bequeathed  all  the  "  balance  of  his  estate"  to  certain  parties  in 
general  terms,  and  after  making  his  ^Yi}l,  the  testator  acquired  property,  re- 
al and  personal,  it  was  held  that  this  after-acquired  property  fell  into  the  re- 
siduum bequeathed  generally,  and  that  upon  a  deficiency  of  funds  provided 
for  the  payment  of  debts,  the  after-acquired  personalty  was  first  liable. 

Personalty  in  the  hands  of  an  executor  or  administrator,  whether  bequeath- 
ed specifically  or  otherwise,  is  first  liable  to  the  payment  of  debts,  unless 
specifically  exempted,  and  the  real  estate  belonging  to  the  deceased,  wheth- 
er descended  or  devised,  is  not  liable  until  the  former  is  exhausted.' 

Cause  removed  from  the  Court  of  Equity  or  Edgecombe 
county. 

The  plaintiff  in  this  suit,  is  the  executor  of  the  last  will 
and  testament  of  Jesse  C.  Knight,  and  the  bill  is  filed  to  ob- 
tain from  the  Court  a* construction  of  the  said  will.  In  the 
ninth  clause  of  the  will,  the  testator  bequeaths  and  devises  as 
follows : 

"  Item  ninth.  All  the  balance  of  my  estate  and  effects,  with 
all  money  or  monies  due,  I  wish  to  be  disposed  of  according 
to  items  third,  fourth,  fifth  and  sixth,  except  such  perishable 
effects  as  he  shall  deem  best  to  sell,  which  he  shall  sell  on  a 
credit  of  six  months  with  interest ;  and  after  paying  all  my 
debts  and  expenses  of  administration,  the  balance  of  the 
proceeds  shall  be  distributed  by  the  several  items." 

By  the  third  item  of  the  will,  the  te&tatcr  gave  to*  W.  H. 
Knight  certain  lands  and  personal  property  on  certain  condi- 
tions and  limitations.  By  item  fourth^  he  gave  property,  real 
and  personal,  to  Sally  Knight,  on  certain  limitations.  By 
item  fifth,  he  gave  property  to  W.  II.  Knight  for  the  sole  and 
separate  use  of  Martha  A.  Lawrence,  wife  of  A.  B.  Lawrence. 
By  item  6th,  he  devised  and  bequeathed  property  to  Susan, 
wife  of  A.  B.  Nobles. 

After  the  making  of  the  will,  the  testator  acquired  several 


DECEMBER  TERM,  1860.  135 


Knight  V.  Knight. 


tracts  of  land,  and  also  a  considerable  amount  of  personal 
propert}'. 

The  plaintiff  shows  from  an  account  filed,  that  the  notes 
and  proceeds  of  the  perishable  property  will  be  insufficient  to 
pa}^  the  debts  of  the  testator,  leaving  after  these  are  exhausted, 
debts  to  the  amount  of  $11,315.54,  to  meet  which  deficiency, 
some  of  the  legacies  will  have  to  abate.  It  is  for  the  purpose 
of  obtaining  tlie  direction  of  the  Court  as  to  which  of  the  le- 
gacies shall  abate,  that  this  bill  is  filed. 

The  cause  being  set  for  hearing  upon  the  bill  and  answer, 
was  sent  to  this  Court  by  consent. 

Bridgers  and  Rodman  for  the  plaintiff. 

No  counsel  appeared  for  the  plaintiff  in  this  Court. 

Manly,  J.  Upon  a  consideration  of  the  contents  of  the  will 
of  Jesse  C.  Knight,  we  are  of  opinion  in  the  first  place,  that 
the  property  acquired  subsequently  to  the  making  of  the  will, 
falls  into  the  residuum  spoken  of  in  "the  ninth  clause.  Ac- 
cording to  the  provisions  of  the  statute  of  1844  concerning 
wills,  embodied  in  the  Rev.  Code,  ch.  119,  sec.  6,  a  will  in 
reference  to  the  real  and  personal  estate  comprised  in  it,  speaks 
and  takes  effect  as  if  it  had  been  immediately  executed  be- 
fore the  death  of  the  testator,  unless  a  contrary  intention  ap- 
pear from  the  will.  As  nothing  appears  to  rebut  this  legal 
construction,  its  eflect,  in  the  case  before  us,  is  to  throw  the 
after-acquired  lands  as  well  as  personalty  into  the  residuum. 

In  the  second  place,  we  are  of  opinion  that  tliQ  jm'sonalti/ 
of  the  residuum  is  the  fund  primarily  liable  to  the  payment 
of  debts.  It  is  in  all  respects  a  true  residuary  fund  not  spe- 
cifically bequeathed,  but  disposed  of  in  general  terms  to  a 
class  of  legatees. 

It  appears  from  a  summary  statement  of  the  executor,  that 
the  aggregate  amount  of  unpaid  demands  against  the  estate, 
is  $11,315.54. 

We  take  it  for  granted  the  residue  of  personalty  will  not  be 
eafiicient  to  satisfy  this  amount,  and  have  considered  the  will 


136  m  THE  SUPEEME  COURT. 

Whitfield  V.  Gates. 

with  reference  to  the  fund  next  liable,  and  conclude  in  the 
third  place,  that  the  legacies  of  personalty  must  abate.  These 
legacies  all  appear  to  be  specific,  and  they  must,  therefore, 
abate  rateably. 

Since  the  statute  of  1S46,  Eev.  Code,  ch.  46,  sec.  44,  the 
personalty  in  the  hands  of  an  executor  or  administrator,  wheth- 
er it  be  bequeathed  specifically  or  otherwise,  is  first  liable  to 
the  payment  of  debts,  unless  s])ecifically  exempted ;  and  the 
real  estate  belonging  to  the  deceased,  no  matter  in  what  con- 
dition it  is  found,  whether  descended  or  devised,  is  not  liable 
until  the  former  is  exhausted  ;  Graham  v.  Little,  5  Ired.  Eq. 
407. 

By  operation  of  the  wills  act  of  1S46,  the  lands  acquired  by 
Jesse  C.  Knight  subsequently  to  the  making  of  his  will,  pass 
under  the  residuary  clause.  Tiie  distinction  in  this  respect, 
between  real  and  personal  property,  theretofore  existing,  is 
thus  abolished ;  and  both  pass  alike  under  a  bequest  of  the 
residue.  What  would  have  been  the  effect  of  this  without 
our  act  of  1844,  prescribing  the  order  in  which  real  and  per- 
sonal property  shall  stand  in  their  liabilit}'  to  pay  debts,  it  is 
unnecessary  to  enquire.  By  that  act,  personalty  is  put  in  the 
front,  and  we  accordingly  hold  that  the  specific  legacies  of 
personalty  must  abate. 

Pee  Cukiam,  Decree  accordingly. 


R.  M.  WHITFIELD  AND  WIFE  AND  OTHERS  against  JAMES  H. 

GATES. 

Where  there  is  no  allegation  of  fraud,  imposition,  oppression,  or  mistake,  the 
Gourt  will  not  set  up  a  parol  agreement,  and  declare  an  absolute  deed  to 
be  a  mere  security  for  money  advanced. 

Where  a  valuable  consideration  has  been  paid  by  the  person,  to  whom  an 
absolute  deed  for  slaves  is  made,  the  allegation  of  a  parol  trust  in  favor  of 


DECEMBER  TERM,  1860.  137 

AVhitfield  v.  Gates. 

a  third  party,  forms  no  exception  to  the  rule  in)  courts  of  equity,  in  re- 
spect to  declaring  such  a  deed  a  rucre  security  for  money  loaned. 

Although  a  plaintiff  may  fail  as  to  the  principal  equity  he  seeks  to  establish, 
he  may  fall  back  on  a  secondary  equity,  provided  it  is  not  inconsistent 
with  the  principal  equity,  and  the  allegations,  in  the  bill,  are  sufficient  to 
raise  it. 

(The  cases  of  SJielton  v.  Shelton,  5  Jones'  Eq.  202,  and  Riggs  v.  Swann,  ante, 
118,  commented  on  and  distinguished  from  this  case.) 

Cause  removed  from  the  Court  of  Equity  of  Person  county. 

The  bill  is  filed  by  11.  M.  Whitlield  and  his  wife,  Susan, 
and  his  children,  alleging  that  the  said  R.  M.  Whitfield  was 
improvident,  and  being  desirous  to  provide  for  his  wife  and 
children,  the  said  other  plaintifis,  he  made  a  conveyance,  da- 
ted March,  1840,  of  seven  slaves,  (naming  them)  being  all  the 
slaves  he  owned,  for  the  consideration,  expressed  in  said  con- 
veyance, of  $750,  that  said  conveyance  was  made  upon  the 
express  understanding  and  agreement,  that  the  defendant  was 
to  hold  the  slaves  for  the  bciieiit  ol'.  and  in  si)ccial  trust  and 
confidence  for,  tlie  wife  and  children  of  the  said  R.  M.  Whit- 
field, and  that  they  were  to  have  the.  privilege  of  redeeming 
the  same  at  any  time,  by  paying  him  whatever  amount  he 
might  advance  of  the  $750  with  interest;  that  the  defendant 
paid,  at  the  time,  $380,  in  casli,  and  gave  up  a  note  he  held 
on  the  said  R.  M.  AVIiitfield  for  $70,  making  in  all  $400,  and 
executed  a  bond  for  $350,  tlie  balance  of  the  $750  ;  that  some 
some  short  time  thereafter,  in  the  absence  of  the  plaintiff,  R. 
M.  Whitfield,  the  defendant  prevailed  on  his  wife,  the  plain- 
tiff, Susan,  to  give  him  up  the  bond  for  $350.  alleging  as  a 
reason  for  her  so  doing,  tlie  imi)rovidence  of  her  husband  ; 
that  he  being  a  relation  and  a  professed  friend,  she  had  entire 
confidence  that  he  would  deal  fairly  with  the  plaintiffs,  in 
respect  to  the  said  bond  ;  tliat  the  said  slaves  were  worth  at  least 
$1300  at  the  time ;  and  that  the  said  amount  of  $400,  was  all 
that  defendant  has  ever  paid  towards  said  slaves ;  that  the  de- 
fendant did  not  take  possession  of  the  slaves  at  first,  but  a  short 
time  after  the  contract  he  came  for  them,  and  under  a  pre- 
tence, set  up  by  him,  that  it  was  necessary,  to  keep  off  cred- 
itors, for  him  to  take  possession  of  the  property,  and  believ- 


13S  IN  THE  SUPKEME  COURT. 

Whitfield  V.  Gates. 

ing  in  the  sincerity  of  his  purposes,  the  plaintiffs  consented 
for  him  to  take  the  slaves  into  his  possession,  except  one, 
which  remained  in  the  possession  of  the  plaintiffs  ;  that  af- 
terwards, he  sent  them  all  back  to  plaintiffs,  who  kept  pos- 
session of  them  for  six  or  seven  years  ;  that  some  eight  or  ten 
years  ago,  under  the  like  delusive  promises  and  assurances,  he 
again  got  possession  of  the  slaves,  except  the  same  one,  which 
had  formerly  remained  with  them  ;  that  by  the  same  kind  of 
delusive  statements  and  professions  of  kindness  and  affection, 
he  lulled  the  suspicions  of  the  plaintiffs,  and  did,  from  time 
to  time,  put  them  off  when  they  called  upon  him  to  redeliver 
the  slaves  to  them,  and  otherwise  perform  the  trust  he  had 
undertaken  in  behalf  of  the  wife  and  children  ;  that  about  a 
year  before  the  filing  of  the  bill,  the  defendant  had  the  said 
conveyance  registered,  and  has  since  then  set  up  claim  to  the 
absolute  right  to  the  slaves.  The  bill,  among  other  interro- 
gatories, calls  on  the  defendant  to  answer,  as  to  the  said  bond, 
for  $350,  whether  the  same  has  ever  been  paid  to  plaintiffs, 
or  either  of  them,  or  to  any  one  else  ?  and  if  so,  when  ?  and 
where  ?  and  to  whom  ? 

The  prayer  is,  that  the  defendant  may  be  declared  a  trus- 
tee in  behalf  of  the  wife  and  children,  and  that  an  account 
may  be  taken  of  the  amounts  paid  and  of  the  hires  of  the  said 
slaves,  and  for  general  relief. 

To  this  bill,  the  defendant  demurred.  There  was  a  joinder 
in  demurrer,  and  the  cause  set  down  for  argument,  and  sent 
to  this  Court. 

Reade  and  Fowls ^  for  the  plaintiffs. 
Graham^  for  the  defendant. 

Peaesok,  C.  J.  The  principal  equity,  which  the  bill  seeks 
to  enforce,  is  the  ordinary  case  of  converting  a  deed,  absolute 
on  its  face,  into  a  security  for  money,  by  parol  proof  of  an 
agreement  to  that  effect. 

There  is  no  allegation  of  fraud,  imposition,  oppression  or 
mistake,  which  is  necessary,  in  order  to  bring  the  case  within 


DECEMBER  TERM,  1860.  139 


Whitfield  V.  Gates. 


the  application  of  that  doctrine,  as  has  been  decided  over  and 
over  again  by  this  Court. 

On  the  argument  it  was  insisted,  that  this  case  differs  from 
the  ordinary  one,  for  here  the  bargainee,  upon  repayment  of 
the  money,  was  not  to  reconvey  to  the  bargainor,  but  was  to 
convey  to  his  imfe  and  children,  in  whose  favor  a  trust  was 
declared,  and  Shelton  v.  Shelton,  5  Jones'  Eq.  292  ;  Biggs  v. 
JSwcmn,  ante  118,  were  relied  on.  The  position,  that  this  is 
the  case  of  parol  evidence  to  establish  a  declaration  of  trust 
as  distinguished  from  a  condition,  is  not  tenable,  and  the  cases 
cited,  have  no  application.  The  defendant  paid  a  part  of  the 
purchase-money  and  secured  the  balance  by  note.  This^rm- 
ed  a  use  for  him,  and  when  the  legal  estate  passed,  the  two 
united  so  as  to  give  him  the  estate,  both  legal  and  equitable,  and 
by  the  force  and  effect  of  the  deed,  he  became  the  owner,  to 
all  intents  and  purposes.  The  purpose  of  the  parol  evidence 
is  to  show  an  agreement,  by  which  his  estate  was  to  close, 
and  he  was  to  hold  in  trust  for  the  wife  and  children  of  the  bar- 
gainor on  repayment  of  the  purchase-money ;  which  is 
neither  more  nor  less  than  a  condition,  by  which  his  princi- 
pal estate  is  to  be  defeated :  in  other  words,  a  deed,  absolute 
on  its  face,  and  vesting  in  the  bargainee  an  absolute  estate, 
is  to  be  converted  into  a  security  for  money,  and  upon  his  estate 
being  defeated,  he  is  directed  to  convey  to  the  wife  and  chil- 
dren of  the  bargainor,  instead  of  the  bargainor  himself,  which 
is  a  distinction  without  a  difference,  for,  in  either  case,  an  abso- 
lute estate  is  defeated  by  parol  evidence.  In  Shelton  v.  iSheltmi, 
a  grand-mother  ^^«/(Z  the  inirchase-money ,  and  instead  of  tak- 
ing the  title  herself,  directed  the  title  to  be  made  to  A,  and 
by  parol,  made  a  declaration  of  the  trust  in  favor  of  her  grand- 
cliildren.  By  force  and  effect  of  the  deed,  A  acquired  only 
the  legal  estate,  and  a  trust  would  have  resulted  to  the  grand- 
mother, by  reason  of  her  having  paid  the  price,  so  the  effect 
of  the  parol  declaration  was  simply  to  direct  the  trtist  from 
herself  and  give  it  to  the  grand-children. 

In  Biggs  v.   Swann,  a  father  had  mortgaged  two  slaves. 
The  mortgagee  agrees  to  take  one  of  the  slaves,  absolutely, 


140  IN  THE  SUPREME  COURT. 

Whitfield  V.  Gates. 

in  satisfaction  of  the  debt,  and  reconvey  the  other.  The  fa- 
ther directs  the  title  to  be  made  to  A,  and  by  parol,  makes  a 
declaration  of  the  trust,  to  wit,  A  is  to  hold  in  trust  until  the 
hire  pays  off  a  debt  due  him,  and  then,  in  trust  for  two  of  the 
children  of  the  mortgagor,  A  had  paid  nothing  for  the  slave, 
and  but  for  the  declaration,  would  have  held  the  legal  title, 
in  trust,  for  the  father.  So,  the  effect  of  the  declaration  was 
simply  to  divest  the  trust  from  himself  and  give  it  to  the  two 
children,  after  a  debt  was  paid. 

In  these  cases,  the  person  to  whom  the  deed  was  made,  ne- 
ver had  the  use  or  equitable  estate,  and  t]ie  effect  of  the  deed 
was  simply  to  pass  to  him  the  legal  title.  But  in  our  case, 
the  defendant,  by  force  of  the  deed,  acquired  absolutely,  both 
the  legal  and  equitable  estate,  and  the  attempt  is,  by  parol 
evidence,  to  defeat  his  estate.     "  N'ote  the  diversity." 

Although  tlie  plaintiffs  have  failed  to  establish  their  prin- 
cipal equity,  there  is  a  secondary  equity  disclosed  by  the  bill. 
It  is  alleged  that  the  defendant  induced  the  wife  of  the  plain- 
tiff" to  give  up  to  him  the  note  for  $35u,  which  he  had  given 
to  secure  the  balance  of  the  purcliase-raoney,  without  paying 
any  thing  for  it,  and  under  the  delusive  assurance,  that  it  was 
best  for  her  do  so,  because  of  the  improvidence  of  the  hus- 
band. So,  the  defendant  holds  the  note  thus  fraudulently 
procured  to  be  surrendered  to  him,  and  has  never  paid  the 
amount  due  thereon.  The  demurrer  admits  these  allegations 
and  the  fraud  charged.  It  follows  that  it  cannot  be  sustain- 
ed in  respect  to  this  note,  and  being  bad  as  to  part  of  the  bill,  it 
is  bad  as  to  all,  according  to  a  well-settled  rule  of  this  Court. 

It  is  also  well  settled,  that  altliougli  a  plaintiff  may  fail  as 
to  the  principal  equity,  which  he  seeks  to  establish,  he  may 
fall  back  on  a  secondary  equity,  provided  it  is  not  inconsist- 
ent with  the  principal  equity,  and  the  allegations,  in  the  bill,  are 
sufficient  to  raise  it.  It  is  certainly  not  inconsistent  with  the 
main  purpose  of  the  bill  for  the  plaintiffs,  failing  in  that,  to 
insist  that  the  defendant  should,  at  the  least,  jjay  the  full 
price,  which  he  agreed  to  give,  and  not  avail  himself  of  a 
fraud  in  procuring  the  surrender  of  the  note,  which  he  had 


DECEMBER  TERM,  1860.  141 

Jackson  v.  Rbera. 

executed,  as  security,  for  a  part  of  it,  aud  the  allegations  are 
made  with  sufficient  certainty. 

Per  Curiam,  Demurrer  over-ruled. 


J.  H.  JACKSON  AND  WIFE  AND  OTHERS  against  E.  H.  EHEM,  Jr., 
Admr  AND  OTHERS. 

Where  a  man  and  woman  live  toq^ether  as  man  and  wife,  and  are  so  reputed 
in  the  neighborhood,  up  to  the  death  of  one  of  the  parties,  and  have  chil- 
dren whicla  they  treat  as  legitimate,  a  court  will  not  declare  against  the 
marriage  except  upon  the  most  overwhelming  proof  that  there  was  no  mar- 
riage. 

Cause  removed  from  the  Court  of  Equity  of  Lenoir  count3\ 
This  was  a  petition  for  a  distributive  share,  and  it  sets  out 
that  Edward  Rhem,  late  of  the  county  of  Craven,  died  intes- 
tate in  the  year  1855,  and  left  a  large  personal  estate,  which 
went  into  the  hands  of  the  defendant,  E.  11,  Rhem,  Jr.,  as  his 
administrator ;  that  Edward  Rhem  left  no  children,  but  left 
surviving  him  a  brother  and  a  large  number  of  nephews  and 
nieces,  children  of  deceased  brothers  and  sisters,  among  which 
latter  class  are  the  feme  plaintiffs  in  this  suit,  who  are  the 
children  of  Melchor  Rhem,  a  deceased  brother  of  the  testator, 
Edward  Rliem  ;  and  that  representing  their  deceased  father, 
they  are  entitled  to  a  distributive  share  of  the  estate  of  the 
said  Edward  Rhem,  deceased. 

The  defendants,  in  their  answers,  deny  that  the  feme  plain- 
tiffs are  entitled  to  represent  their  deceased  father  in  the  dis- 
tribution of  the  said  estate,  being,  as  the  answers  allege,  ille- 
gitimate children.  Testimony  was  taken  on  both  sides,  from 
which,  it  is  apparent  that  Melchor  Rhem  and  the  mother  of 
the  feme  plaintiffs  lived  together  for  twenty  years  as  man  and 
wife,  and  were  reputed  as  such  in  the  neighborhood,  but 
there  was  no  evidence  that  they  had  been  actually  married. 


142  IN  THE  SUPREME  COURT. 

Jackson  v.  Rhem. 

A  copy  of  a  marriage  bond,  certified  by  the  clerk  of  the  coun- 
ty court  of  Lenoir,  was  produced,  which  bond,  recited  that 
Melchor  Rhem  had  obtained  license  to  marry  Alice  Davis, 
the  mother  of  the  feme  plaintiflPs. 

Several  witnesses  testified,  that  they  had  heard  Melchor 
Rhem  say,  on  several  occasions,  both  before  and  after  the 
deatli  of  his  reputed  wife,  that  he  had  never  married  her. 

The  cause  being  set  for  hearing  upon  bill,  answer,  exhibits 
and  proofs,  was  sent  to  this  Court  by  consent,  and  after  ar- 
gument here,  the  Court  directed  issues  to  be  tried  in  the  Su- 
perior Court  of  Lenoir :  1st.  Were  the  said  Melchor  Rhem 
and  Alice  Davis  ever  lawfully  married. 

2ndly.  Were  the  plaintiff's,  or  either  of  them,  born  in  law- 
ful wedlock  ? 

These  issues  were  submitted  to  a  jury,  who  found  both  in- 
favor  of  the  plaintiff's.  Which  finding,  was  certified  to  this 
Court,  and  at  this  term,  the  defendant's  counsel  moved  the 
Court  to  dismiss  the  plaintiffs'  bill,  notwithstanding  the  ver- 
dict, or  to  order  another  trial  of  the  issues,  on  the  ground? 
that  the  verdict  is  against  the  weight  of  evidence. 

Stevenson^  for  the  plaintiffs. 

</.  TF.  Bryan  and  G.  Green^  for  the  defendants. 

Battle,  J.  The  issues  made  by  the  pleadings,  in  this  case, 
were  first,  whether  the  defendant,  E.  IT.  Rhem's  intestate, 
Melchor  Rhem,  was  ever  lawfully  married  to  the  mother  of 
the  feme  plaintiffs,  and  if  so,  were  the  said  feme  plaintiffs 
bom  in  lawful  wedlock.  Upon  these  disputed  questions  of 
fact,  the  testimony  was  so  conflicting,  and  it  was  so  doubtful 
on  which  side  the  weight  of  it  preponderated,  that  we  felt 
unwilling  to  decide  it  without  the  aid  of  the  verdict  of  a  jury 
of  tlie  count}'-,  where  the  alleged  man  and  wife  had  lived. 
Issues  for  that  purpose  were,  accordingly,  under  an  order  of 
this  Court,  sent  down  to  be  tried  in  the  Superior  Court  of  law 
for  that  county;  and  upon  the  trial  there  had,  the  jury  have 
haye  found  both  issues  in  favor  of  the  plaintiffs,  of  which  a 


DECEMBER  TERM,  1860.  143 

Jackson  v.  Rhem. 

< . — _ — . ^ 

certificate  has  been  properly  transmitted  to  ns.  The  counsel 
for  the  defendants  have  appeared  in  this  Court,  and  moved 
us,  upon  a  consideration  of  the  testimony,  to  render  a  decree 
dismissing  the  plaintiffs  bill,  notwithstanding  the  verdict,  or 
to  order  another  trial  of  the  issues,  upon  the  ground,  that  the 
verdict  on  the  first  trial,  is  decidedly  against  the  weight  of 
the  evidence.  We  do  not  feel  at  liberty  to  grant  either  alter- 
native of  the  defendants'  motion.  We  are  of  opinion  that 
when  a  man  and  woman  have  lived  together  for  many  years, 
treating  each  other  as  man  and  wife,  and  have  been  so  repu- 
ted to  be  in  the  neighborhood  where  they  lived,  during  all 
the  time,  in  which  they  thus  cohabited  ;  and  where  they  have 
had  children,  which  were  treated  by  the  parents  as  legitimate, 
up  to  the  time  of  the  death  of  the  latter,  we  think  that  the 
testimony,  which  should  induce  a  court  to  declare  against  the 
marriage  of  the  parties,  and  thereby  to  bastardize  their  issue 
after  their  deaths,  ought  to  be  so  overwhelming  as  to  leave 
not  a  doubt  about  the  tacts  thus  declared.  It  was  a  well 
known  rule  of  the  ecclesiastical  law,  that  if  two  persons,  who 
labored  under  canonical  disabilities  intermarried  with  each 
other,  the  marriage  could  not  be  declared  to  have  been  void 
after  the  death  of  both,  or  either  of  the  parties.  That  rule 
does  not  prevail  in  our  law,  because  we  do  not  recognise  the 
ecclesiastical  as  part  of  our  common  law  of  marriage,  but  the 
principal,  upon  which  it  was  founded,  that  the  validity  of  a 
marriage  ought  not  to  be  questioned  after  the  parties,  or  eith- 
er of  them,  have  by  death  been  deprived  of  the  opportunity 
of  supporting  it  by  proof,  may '  well  infiuence  our  courts  in 
deciding  upon  the  existence  of  a  marriage  and  the  legitimacy 
of  issue  after  the  death  of  both,  or  either  of  the  i)arents. 

Our  opinion  is,  that  the  plaintifts  are  entitled  to  a  decree, 
declaring  the  facts  found  by  the  issue,  and  for  the  relief  con- 
sequent thereon. 

Per  Curiam,  Decree  accordingly. 


IM  IN  THE  SUPREME  COURT. 


Attorney  General  v.  Allen. 


THE  ATTORNEY  GENERAL  against  JEREMIAH  N.  ALLEN. 

After  a  cause  is  in  this  Court  and  the  party  is  ready  to  have  it  heard,  a  mo- 
tion to  dismiss,  for  want  of  a  prosecution  bond,  Avill  not  be  entertained. 

The  8th  section  of  the  99th  chapter  of  the  Revised  Code,  which  directs  the 
tax  on  legacies  to  strangers  in  blood,  imposed  by  the  preceding  section,  to 
be  retained  by  the  executor  or  administrator  '•  upon  his  settlement  ol  the 
estate,"  and  directs  the  tax  to  be  paid  into  the  clerk's  office,  has  reference 
to  his  settlement  with  the  individual  to  whom  the  legacy  is  bequeathed, 
and  not  to  the  final  settlement  of  the  estate,  and  the  tax  must  be  paid  into 
the  office  on  the  settlement  with  the  legatee. 

Cause  removed  from  the  Court  of  Equity  of  Craven  count3\ 

This  was  a  bill  of  information  filed  by  William  A.  Jenkins, 
Attorney  General,  against  the  defendant,  Allen,  who  is  the 
administrator  cum  testamento  annexo  of  Isham  Jackson,  de- 
ceased. It  alleges  that,  by  his  will,  Isham  Jackson  bequeath- 
ed a  considerable  pecuniary  legacy  to  a  natural  son,  one  Dan- 
iel Jackson ;  that  by  the  Revenue  law  of  North  Carolina,  a 
tax  of  three ^>C'^'  cent,  upon  tliis  legac}'  is  due  th6  State,  which 
sum,  the  defendant  has  failed  to  pay  over  upon  demand. 

The  answer  admits  the  material  facts  averred  in  the  bill,  and 
states  the  amount  of  the  legacy  in  question,  to  be  $632.84, 
upon  which  the  tax  amounted  to  $18.98.  This  sum  defend- 
ant paid  into  the  clerk's  office  on  the  20th  of  October,  1860, 
more  than  six  months  after  the  bill  w'as  filed.  The  defendant 
alleges  that,  by  the  terms  of  the  statute  upon  Revenue,  he 
was  not  bound  to  retain  and  pay  over  the  tax  until  the  final 
settlement  of  the  estate,  which  final  settlement  had  been  de- 
layed by  the  pendency  of  a  suit  against  him,  as  administrator. 

The  8th  section  of  the  99th  chapter  of  tlie  Revised  Code, 
upon  the  construction  of  which,  the  case  is  made  to  turn,  is 
in  the  following  M^ords,  viz  : 

"  The  executor  or  administrator  of  every  sucli  deceased 
person,  on  his  settlement  of  the  estate,  shall  retain  out  of  the 
legacy,  or  distributive  share,  of  every  such  legatee  or  next  of 
kin,  the  tax  properly  chargable  thereon  ;  and  in  case  he  may 
have  sold  any  real  estate,  and  there  shall  be  any  surplus  in 


DECEMBER  TERM,  1860.  145 

Attorney  General  v.  Allen. 

his  hands,  not  needed  to  pay  debts  and  charges,  he  shall  re- 
tain tlie  proper  tax  of  each  person  entitled  to  such  surplus ; 
which  taxes,  he  shall  pay  to  the  clerk  of  the  court  of  pleas  and 
quarters  sessions  of  the  county  wherein  the  will  was  proved, 
or  administration  granted." 

The  cause  being  set  for  hearing  upon  bill  and  answer,  was 
sent  to  this  Court  by  consent. 

Henry  C.  Jones^  for  the  plaintiff. 

J.  N.  Washingto?i,  for  the  defendant. 

Peaeson,  C.  J.  1.  Tlie  motion  to  dismiss  for  want  of  a 
prosecution  bond,  made  in  this  Court,  is  not  allowed.  Such 
matters  should  be  attended  to  in  the  preliminary  stage  of  a 
suit.  After  a  case  is  in  this  Court  and  the  party  is  ready  to 
have  it  heard,  a  motion  to  dismiss  for  want  of  a  prosecution 
bond,  is  "  behind  time." 

2.  The  objection,  which  is  faintly  made  by  the  answer,  that 
an  illegitimate  son  is  not  "  a  stranger  in  blood,"  was  proper- 
ly abandoned  on  the  argument. 

3.  The  point  made  on  the  construction  of  the  statute,  Rev. 
Code,  chap.  99,  sec.  8,  is  against  the  defendant.  "  On  his  settle- 
ment of  the  estate"  taken  in  connection  with  the  words,  "  shall 
retain  out  of  the  legacy  or  distributive  share  of  everj^  such  leg- 
atee or  next  of  kin,"  does  not  refer  to  a  final  settlement  of  the 
estate,  but  to  liis  settlement,  so  far  as  the  legatee  or  distribu- 
tee is  concerned,  out  of  whose  legacy  or  share,  the  tax  is  to 
be  retained.  When  an  administrator,  as  in  this  instance,  pays 
over  a  legacy  and  retains  out  of  it  the  amount  of  the  tax,  for 
what  purpose  should  he  keep  it  in  hand  until  there  can  be  a 
"final  settlement"  of  the  estate  ?  Ctd  ho7io,  except  to  tempt 
him  to  apply  the  amount  (which  would  otherwise  be  idle  in 
his  pocket)  to  his  own  use  ? 

4.  It  appears  by  the  exhibit  filed,  that  the  defendant  paid 
the  amount  of  the  tax  to  the  county  court  clerk  on  the  20th 
of  October,  18G0,  but  the  bill  was  filed  March  1860.  So,  the 
defendant  is  again  "behind  time;"  for  taking  the  matter  as 

10 


146  m  THE  SUPREME  COURT. 

Johnston  v.  Chesson. 

ground  against  a  further  prosecution  of  the  suit,  in  order  to 
be  a  bar,  it  should  have  been  accompanied  by  the  payment 
of  all  cost  up  to  that  date.  The  plaintiff  will  have  a  decree 
for  the  amount  of  the  tax  (to  be  satisfied  by  the  money  in  the 
clerk's  office)  and  for  his  costs,  which  really  seems  to  be  the 
point  in  the  case. 

We  will  take  occasion  to  say  tliat  the  payment  of  taxes  is 
a  duty,  which  every  good  citizen  ought  to  attend  to.  If  he  is 
remiss  in  regard  to  it,  he  has  no  right  to  object  to  a  "bill  of 
cost."  The  State  is  not,  and  ought  not  to  be  required  to  be  at 
the  expense  of  having  an  agent  to  make  a  demand  in  each  and 
every  case.  Every  good  citizen,  should  be  prompt  to  pay  his 
taxes. 

Per  Curiam,  Decree  accordingly. 


JOHN  C.  JOHNSTON  against  JOHN  B.  CHESSON,  Jr.,  AND  OTHERS. 

Under  the  statute  of  distributions  in  this  State,  Rev.  Code,  chap.  64,  sections 
1  and  2,  representation  is  not  admitted  among  collateral  kindred  after 
brother's  and  sister's  children,  and,  consequently,  uncles  and  aunts  of  an 
intestate,  take  to  the  exclusion  of  the  children  of  a  deceased  uncle. 

Cause  removed  from  the  Court  of  Equity  of  "Washington 
county. 

The  bill  is  filed  by  the  administrator  of  Otis  W.  ChessOn, 
and  prays  the  instruction  of  the  Court  as  to  his  dut}'  in  the 
administration  of  the  estate.  He  sets  out,  that  his  intestate 
left  him  surviving,  an  uncle,  one  Nathaniel  C.  Chesson,  an 
aunt,  Sarah  Chesson,  who  has  since  married  one  Swain,  and 
a  cousin,  John  B.  Chesson,  junior,  son  of  a  deceased  uncle. 
The  defendants,  in  this  suit,  are  the  uncles  and  aunts, 
and  the  said  John  B.  Cliessou,  jr.,  wlio  claims  an  equal  share 
with  his  uncle  and  aunt  in  the  estate  of  the  intestate.     Tlie 


.1     DECEMBER  TERM,  1860.  147 

Johnston  v.  Chesson. 

cause  being  set  for  hearing  upon  bill  and  answer,  was  trans- 
ferred to  this  Court  by  consent. 

//.  A.  GUliani^  for  the  plaintiff. 
Wi7iston^  Jr.^  for  the  defendants. 

Battle,  J.  The  bill  is  filed  for  the  sole  purpose  of  obtain^ 
ing  the  decision  of  the  Court  upon  the  question,  whether  in 
the  distribution  of  the  personal  estate  of  an  intestate,  the  son 
of  a  deceased  uncle  can,  by  right  of  representation,  claim  an 
equal  share  with  an  uncle  and  aunt,  who  are  the  nearest  of 
kin  to  the  intestate.  This  question  is  settled  by  the  express 
words  of  our  act  of  distributions,  which  says,  that  in  the  case 
of  an  intestacy,  "  if  there  be  neither  widow  nor  children,  nor 
any  legal  representative  of  children,  the  estate  shall  be  distri* 
buted  equally  to  every  of  the  next  of  kin  of  the  intestate, 
who  are  in  equal  degree,  and  to  those  who  legally  represent 
them,"  with  a  proviso,  "  that  in  the  distribution  of  the  estate, 
there  shall  be  admitted  among  collateral  kindred,  no  repre- 
sentative after  brothers'  and  sisters'  children  ;"  see  Rev.  Code, 
chap.  64,  sections  1  and  2.  There  was  a  similar  provision  in  the 
English  statute  of  distributions  of  the  22d  Charles  II,  and  it 
has  always  been  held  thatamong  the  unclesand  aunts  and  other 
more  distant  kindred  of  an  intestate,  there  could  be  no  right 
of  representation  allowed ;  2  Williams  on  Executors,  930. 
In  the  rules  of  the  descent  of  real  estate,  the  right  of  repre- 
sentation is  indefinite,  as  well  among  collateral  as  lineal  kin- 
dred ;  see  Rev.  Code,  chap.  38,  sec.  1,  rule  3.  This  has  al- 
ways been  the  law,  both  in  England  and  in  this  State,  (see 
Clement  v.  Cauhle,  2  Jones'  Eq.  82 ;  Ilaynes  v.  Johnston,  5 
Jones'  Eq.  124,)  and  in  consequence  of  it,  the  real  estate  of 
an  intestate  will  often  devolve,  in  part,  upon  a  person,  who 
cannot  take  any  portion  of  his  personal  estate.  The  law,  up- 
on the  subject,  has  been  so  long  and  so  firmly  established, 
that  it  is  unnccessar}'^  for  us  to  attempt  an  explanation  of  the 
reasons  upon  which  it  was  originally  founded. 

Per  Curiam,  Decree  accordingly. 


148  IN  THE  SUPKEME  COUET. 


Mason  v.  Sadler. 


ANDREW  S.  MASON  AND  ANOTHER  against  DEMPSEY  B.  SAD- 
LER, Administrator. 

Where  a  testator  bequeathed  as  follows :  "  I  lend  to  my  wife,  during  her  life, 
all  my  negroes  (three  in  number)  for  the  purpose  of  raising  and  educating 
my  two  sons,"  which  was  but  a  reasonable  share  of  her  husband's  estate, 
and  gave  in  the  same  will,  in  appropriate  terms,  to  his  wife,  as  guardian  to 
his  two  sons,  the  remainder  of  his  estate,  it  was  held  that  the  former  clause 
conferred  upon  her,  for  life,  a  beneficial  interest  in  said  property,  with  a 
recommendation  in  behalf  of  the  two  sons. 

Cause  removed  from  the  Court  of  Equity  of  Hyde  county, 

Osborne  Foy  Mason,  by  liis  will,  dated  14:tli  of  January, 
1841,  bequeathed  as  follows :  "  First,  I  lend  to  my  wife,  Pol- 
ly, during  her  life,  all  my  negroes,  to  wit :  Charles,  Clarisa, 
and  Bets}'  Ann,  and  their  increase,  for  the  purpose  of  raising 
and  educating  my  two  sons,  (Andrew)  Shanklin  and  Ausbond, 
*  "■  *  and  for  her  year's  provision,  one  hundred  and  twen- 
ty dollars."  "  I  give  and  bequeath  to  my  two  sons,  Shanklin 
and  Ausbond,  at  the  death  of  my  wife,  Polly,  all  my  ne- 
groes, viz :  Charles,  Clarissa,  and  Betsy  Ann,  and  their  in- 
crease," with  contingent  limitations  over. 

"  All  my  perishable  estate,  except  such  that  I  have  allotted 
to  my  widow,  I  wish  to  be  sold  on  a  credit  of  six  months,  and 
at  the  expiration  of  two  years,  after  proving  the  will,  I  wish  my 
executor  to  pay  over  to  my  widow,  as  guardian  of  my  two  sons, 
all  the  funds  on  hand  for  the  purpose  of  raising  and  educat- 
ing my  sons,  and  for  the  purpose  of  her  providing  them  a 
dwelling  and  land  to  live  upon." 

By  a  codicil,  he  devises  as  follows  :  "  The  land  I  lately 
purchased  of  Joseph  Swindell,  I  have  lent  to  my  wife  her  life- 
time, and  at  her  death,  I  give  and  bequeath  the  same  to  my 
two  sons,  Shanklin  and  Ausbond."  The  bill  asserts  an  equity 
in  behalf  of  the  two  sons,  Andrew  Shanklin  and  Osborne, 
(called  in  the  will  Ausbond,)  as  arising  to  them  from  the  first 
clause  of  the  above  will  and  seeks  to  have  the  widow  declar- 
ed a  trustee  for  their  benefit,  in  respect  to  the  slaves  therein 
mentioned.     Mrs.  Mason,  the  mother,  lived  on  the  land,  men- 


DECEMBER  TERM,  1860.  149 


Mason  v.  Sadler. 


tioned  in  the  codicil,  from  1841  to  the  year  184-7,  and  in  that 
year,  was  married  to  one  Richard  Sadler.  Before  this  mar- 
riage, one  of  the  slaves,  mentioned  in  the  will  of  Foy  Mason, 
to  wit,  Clarisa,  was  sold  by  the  administrator  with  the  will 
annexed  of  her  husband,  for  the  payment  of  debts,  and  Mrs. 
Mason  became  the  purchaser  at  four  hundred  dollars  ;  of  this 
sum,  she  paid  out  of  the  money  arising  to  her  from  her  hus- 
band's will,  for  lier  year's  allowance,  $120,  and  some  further 
amount  out  of  the  money  arising  from  the  hire  of  Charles. 
The  unpaid  balance  of  this  note  was  discharged  by  Sadler, 
the  second  husband.  While  residing  on  the  land,  left  her  by 
her  husband,  the  plaintiffs,  who  were  small,  lived  with  her, 
and  did  some  light  work,  and  afterwards,  when  she  married, 
they  went  with  her  to  the  dwelling  of  her  second  husband  and 
spent  some  year  or  two  in  that  family,  sometimes  working  in 
the  crop.  Tliey  afterwards  lived  at  other  places  in  the  neigh- 
borhood and  worked.  Sadler,  the  second  husband,  took  all 
the  slaves  into  his  possession,  and  kept  them  during  the  life- 
time of  his  wife ;  after  her  death,  which  occurred  in  1850, 
he  delivered  Charles  and  Betsy  Ann  to  the  guardian  of  the 
plaintiflfs,  but  as  to  the  woman,  Clarisa,  and  her  children,  he 
retained  them,  insisting  that,  by  the  purchase  of  his  wife  and 
the  payments  made  by  her  and  himself,  the  absolute  proper- 
ty in  these  slaves  vested  in  him.  The  plaintiffs  were  not  sent 
to  school  at  all,  and  it  appeared  were,  at  times,  badly  clad,  but 
this  seemed  to  aiise  more  from  the  straightened  circumstances 
of  the  mother,  during  her  widowhood,  than  from  neglect  or 
indifference.  It  took  all  that  could  be  made  by  the  hire  of 
Charles  and  Betsy  Ann  to  support  the  family  in  the  condi- 
tion mentioned.  As  to  Clarisa,  she  soon  had  a  family  of  small 
children,  and  added  to  the  expense  of  the  family.  On  the 
death  of  Richard  Sadler,  this  suit  was  brought  against  his 
administrator  for  the  recovery  of  Clarisa  and  her  children, 
alleging  that  she  had  been  pa:d  for  out  of  the  hires  of  the  said 
three  slaves,  which  they  said  belonged  to  them;  alleging  also, 
that  they  had  never  received  the  benefit  of  the  said  property, 
either  in  maintenance  or  education  or  in  any  other  way,  and 


150  m  THE  SUPKEME  COUKT. 

Mason  v.  Sadler. 

praying  an  account  of  the  hires  of  the  slaves  while  in  the 
possession  of  the  said  Richard  Sadler,  and  of  the  woman,  Cla- 
risa,  and  her  increase,  since  his  death. 

The  answer  of  the  administrator  of  Richard  Sadler,  insists 
that  the  beneficial  use  of  the  slaves  belonged,  b.y  a  proper 
construction  of  the  will,  to  Mrs.  Mason,  and  as  such,  the  right 
to  the  two  slaves,  Charles  and  Betsy  Ann,  for  his  wife's  life, 
vested  in  him,  and  as  to  Clarisa,  she  was  his  by  his  wife's 
purchase. 

The  proofs  taken  in  the  cause,  establish  the  facts  of  the 
case,  as  stated. 

The  cause  was  set  down  to  be  heard  on  bill,  answer  and 
proofs,  and  sent  to  this  Court. 

Donnell  and  Carter^  for  the  plaintiffs. 

No  counsel  appeared  for  the  defendant  in  this  Court. 

Manly,  J.  The  question  presented  by  the  pleadings  is, 
whether  the  language  used  by  the  testator,  Foy  Mason,  in  the 
first  clause  of  his  will,  creates  a  trust,  in  his  wife,  of  Charles, 
Clarisa  and  Betsy,  for  the  sons,  Andrew  and  Osborne. 

It  seems  that  Clarisa  was  sold  by  the  administrator  to  pay 
debts — bought  by  the  widow  and  paid  for,  partly,  by  funds 
arising  from  the  hires  of  the  other  slaves,  and  the  object  of 
the  bill  is  to  follow  the  fund  and  to  hold  the  property  in 
which  it  was  invested  as  security  pro  tanio. 

Thus,  the  equity  of  the  bill  rests  upon  the  principle,  that 
the  slaves  loaned  to  the  wife,  for  life,  was  a  trust,  solely  for 
the  benefit  of  the  children  during  that  term.  Indeed,  that  is 
the  leading  allegation  of  the  bill.  This,  we  think,  is  a  mis- 
construction of  the  will.  Considering  the  clause,  in  connec- 
tion with  the  other  bequests  of  the  will,  we  are  of  opinion  the 
wife,  under  the  bequest,  took  an  absolute  legal  estate,  and 
that  the  words,  "for  the  purpose  of  raising  and  educating mj 
two  sons."  have  not  the  effect  to  qualify  that  estate.  Our  in- 
terpretation is,  that  the  words  mean  to  give  a  reason  for  the 


DECEMBEE  TEEM,  1860.  151 

Mason  v.  Sadler. 

gift,  and  in  that  way,  to  suggest  and  recommend  a  duty  that 
was  incumbent  on  her. 

This  construction  is  strengthened  by  reference  to  the  terms 
of  the  provision,  made  in  another  part  of  the  will,  for  the  sons. 
It  is  there  directed  that  certain  property  be  sold,  and  after 
two  years  from  the  probate  of  the  will,  be  paid  over  to  his 
widow,  as  guardian  to  his  sons,  for  the  purpose  of  raising  and 
educating  them,  &c.  The  language  used,  in  these  clauses,  is" 
so  different,  that  we  cannot  suppose  the  testator  meant  the 
same  thing.  The  inference  is,  that  as  the  latter  bequest  was 
certainly  intended  for  the  benefit  of  the  sons,  the  former  was 
intended  for  that  of  the  wife,  with  an  admonition,  as  she  had 
the  means  afibrded  her,  to  take  care  of  the  children. 

It  will  be  found,  upon  examination  of  the  will,  that  if  the 
widow  takes  no  beneficial  interest  in  the  bequest  of  the  slaves 
aforesaid,  that  a  very  inadequate  provision  is  made  for  her. 
This  is  contrary  to  the  general  tenor  of  the  instrument,  and  to 
the  dispositions"  towards  the  wife  manifested  in  it.  It  would 
be  calculated  to  provoke  a  dissent,  inevitably,  and  the  conse- 
quent disturbance  of  his  arrangements,  which  he  could  not 
have  desired  or  contemplated.  The  facts  of  the  case  show, 
that  with  all  the  assistance  given  in  the  will,  it  was  a  hard  strug- 
gle for  her  to  keep  the  property  together  and  maintain  her- 
self and  family  in  the  humblest  manner.  But  a  small  portion 
— about  $80  of  the  income,  from  slaves,  was  devoted  to  the 
purchase  of  Clarisa,  the  balance  having  been  paid  by  the  ap- 
plication of  her  year's  provision  to  that  object,  and  by  moneys 
furnished  by  her  second  husband,  the  defendant's  intestate. 

The  term,  for  which  the  property  is  given,  it  seems  to  us, 
is  significant  of  the  purpose  of  the  testator.  A  loan,  for  life, 
is  appropriate  and  usual  in  cases  of  gift  for  the  donee's  own 
use,  but  it  is  of  rare  resort,  where  it  is  intended  the  donee 
shall  hold  for  the  benefit  of  others.  It  is  not  such  language 
as  would  naturally  be  adopted  for  eflPecting  a  purpose  of  that 
kind. 

There  is  no  warrant,  therefore,  either  in  the  language  of 
the  bequest,  or  the  intention  of  the  testator,  as  gathered  from 


152  IN  THE  SUPREME  COURT. 

White  V.  Hooper. 

the  entire  instrument,  for  severing  the  beneficial  interest  from 
the  legal  estate.  The  language,  in  which  the  bequest  is  cloth- 
ed, is  simply  demonstrative,  and  amounts,  at  most,  only  to  an 
injunction,  on  the  legatee,  to  enjoy  the  property  given,  in  a 
particular  manner. 

This  case  is  distingushed  from  that  of  Little  v.  Bennett,  5 
Jones'  Eq.  156.  There,  the  entire  estate  of  the  testator  was 
given  to  the  wife  to  raise  and  educate  the  children,  and  to 
dispose  of  among  them  as  she  might  think  proper.  This  was 
held  to  confer  a  beneficial  interest  on  both,  which  might  be 
enforced  in  a  court  of  equity.  But  it  was  placed  expressly 
upon  the  ground,  that  it  could  not  be  intended  for  herself 
alone,  because  there  would  then  be  nothing  for  the  children  ; 
nor  could  it  be  intended  for  the  children  alone,  because,  in 
that  case,  the  mother  would  be  left  destitute,  and,  therefore, 
it  was  intended  to  be  given  to  both.  In  the  case  before  us, 
distinct  provision  is  made  for  each,  and  we  are  of  opinion  the 
words  annexed  to  the  bequest  for  the  wife,  do  not  confer  up- 
on the  children  rights  that  will  be  enforced  by  the  Court. 

Per  Curiam,  Bill  dismissed. 


EDWARD  WHITE  AND  WIFE  AND  OTHERS  against  JOSEPH 
HOOPER,  ADM'R  AND  OTHERS. 

A  bill  will  not  lie  at  the  instance  of  the  beirs,  against  the  administrator  of  one 
who  had  executed  a  bond  to  make  title,  to  enjoin  the  latter  from  making 
a  deed  to  the  obligee,  upon  the  ground  that  he  had  not  paid  the  purchase-mo- 
ney, but  fraudulently  pretended  to  have  had  done  so,  and  to  nullify  the  con- 
tract. It  would  be  the  duty  of  the  administrator,  if  the  money,  in  such  a 
case,  was  not  collected,  to  enforce  the  payment,  and  he  would  be  liable  if 
he  failed  to  do  so. 

The  remedy  of  the  heirs-at-law,  in  a  case  where  the  obligee  had  not  paid  the 
purchase-money  on  a  bond  to  make  title,  would  be  to  file  a  bill  against  such 
obligee  to  compel  a  specific  performance. 


DECEMBER  TERM,  1860.  15( 


White  V.  Hooper. 


Cause  removed  from  the  Court  of  Equity  of  Rockingham 
county. 

The  bill  is  filed  by  the  heirs-at-law  of  James  D.  Taylor, 
and  sets  forth  that  in  the  year  1834,  their  ancestor  made  a 
bond  to  convey  a  tract  of  land,  (describing  it.)  to  Anderson 
Crowder,  whenever  the  purchase-money  for  the  same  should 
be  paid  ;  that  the  said  purchase-money  has  never  been  paid  ; 
that  the  said  Anderson  Avas  very  poor,  and  was  always  unable 
to  pay  the  sum  agreed  in  said  bond  to  be  paid  ;  that  their  an- 
cestor died  in  1839,  and  the  said  Anderson  in  ;  that  no 
administration  was  taken  on  the  estate  of  the  said  James  D. 
Taylor  until  the  defendant  took  out  letters  at  August  Term, 
1856,  of  Guilford  County  Court,  for  the  express  purpose,  as 
plaintiffs  believed,  of  making  a  deed  to  the  heirs  of  the  said 
Crowder,  on  the  assumption  that  the  purciiasc-money  was 
paid  to  the  said  Taylor  in  his  life-time,  and  they  say  by  way 
of  anticipation,  that  the  defendants,  the  children  of  the  said 
Crowder,  are  setting  up  certain  mutilated  bonds  from  which 
the  names  of  the  obligor  has  been  cut,  which  they  pretend 
were  given  for  the  said  land  and  paid,  and  taken  up  by  their 
ancestor  in  his  life-time ;  but  that  the  same  are  feigned,  and 
gotten  up  for  the  occasion.  The  prayer  is  that  the  adminis- 
trator. Hooper,  may  be  enjoined  from  making  title  to  the 
premises,  and  that  the  said  simulated  papers  may  be  surren- 
dered for  cancellation. 

The  defendants  answered  very  fully,  but  as  the  merits  of 
the  equit}^  as  disclosed  in  the  bill,  ai'e  alone  treated  of  by  the 
Court,  a  further  notice  of  the  pleadings  is  not  necessary. 

Moreliead  and  Gorrell^  for  the  plaintiffs. 
Foiole,  for  the  defendants. 

Manly,  J.  This  is  a  bill  filed  by  the  heirs-at-law  of  James 
D.  Taylor,  against  the  administrator  and  heirs-at-law  of  An- 
derson Crowder,  to  enjoin  the  administrator  from  making  a 
title  to  the  latter,  upon  the  allegation  that  their  ancestor  did 
not  pay  for  it.     The  bill  admits  that  Taylor  executed  a  bond 


154  IN  THE  SUPREME  COURT. 


White  V.  Hooper. 


for  a  title,  but  alleges  that  the  evidences  of  payment  have 
been  fraudulently  procured  or  fabricated.  The  prayer  is,  that 
a  conveyance  of  the  land  ma}'-  be  perpetually  prevented  by 
an  injunction  ;  or,  if  already  made,  that  the  deed  may  be  re- 
called and  cancelled,  and  that  the  evidences  of  payment  may 
be  impounded. 

We  think  the  plaintiffs  have  mistaken  their  equity.  Their 
ancestor  having  entered  into  the  bond,  the  administrator,  un- 
der the  provisions  of  the  Rev.  Code,  ch.  46,  sec.  37,  is  bound 
to  carrj'  it  into  execution  according  to  its  conditions.  If  the 
money  has  been  paid,  the  administrator's  sole  duty  is  to  make 
the  title ;  if  it  has  not  been  paid,  his  dutj''  is  to  collect,  and, 
thereupon,  to  make  title.  So,  that  in  either  case,  he  is  charg- 
ed with  the  specific  execution  of  this  testator's  obligation, 

Tlie  equit}'  of  the  heirs-at-law  of  Taylor,  according  to  the 
allegations  of  their  bill,  and  upon  the  supposition  that  the 
purchase-money  was  never  paid,  would  be  to  call  for  a  speci- 
fic performance  themselves,  and  not  to  nullify  the  contract  al- 
together; or,  in  calling  the  administrator  to  an  account  they 
would  have  a  right  to  regard  the  failure  to  collect  this  debt, 
or  the  making  title  without  requiring  its  payment,  as  a  cul- 
pable negligence  or  waste  in  respect  to  liis  assets,  and  make 
him  account  for  the  same. 

The  above  view  of  the  case  is  taken  upon  the  allegations  of 
the  bill  alone,  disconnected  from  the  answers  and  proofs.  It 
is  due  to  the  latter  to  say  that  they  do  not  leave  the  merits  of 
the  bill  unaffected. 

The  complainants  are  not  entitled  to  the  relief  they  seek, 
and  the  bill  must  be  dismissed  with  costs. 

Per  Curiam,  Bill  dismissed. 


DECEMBER  TERM,  1860.  15; 


Sanderlia  v.  Robinson. 


WILLIAM  C.  SxVNDERLIN  AND  WIFE  against  WILLIAM  ROBINSON 
AND  OTHERS. 

Where  a  woman  and  her  intended  luisband,  upon  the  eve  of  marriage  were  in- 
duced by  her  brothers  to  sign  a  marriage  contract,  by  Avhich  her  property  was 
to  be  conveyed  to  trustees  in  such  manner  as  to  deprive  her  not  only  of  the 
right  to  dispose  of  the  rents  and  profits  thereof  during  coverture,  but  also 
of  the  right  to  dispose  of  the  property  itself,  both  during  the  coverture  and 
afterwards,  if  she  survived,  and  gave  the  ultimate  remaindei-  over  after  her 
death  without  issue,  she  being  at  the  time  advanced  in  life,  it  was  held  that 
such  a  contract,  unless  proved  by  the  clearest  testimony  to  have  been  fully 
understood  and  freely  assented  to  by  the  intended  wife  must  be  declared 
fraudulent  as  to  her,  and  inoperative  as  against  the  husband,  except  so 
far  as  it  can  be  presumed  that  he  freely  assented  to  it. 

(The  case  o^Scott  v.  Duncan,  1  Dev.  Eq.  Rep.  403,  cited  and  approved.) 

Cause  removed  from  the  Court  of  E(j[nity  of  New  Hanover 
county. 

The  complainants  in  this  suit  being  abont  to  be  married, 
the  brothers  of  Mrs.  Sanderlin,  then  Margaret  Robinson,  in- 
duced them  to  sign  a  deed  of  marriage  settlement  conveying 
to  trustees  certain  property,  land  and  slaves,  which  was  own- 
ed by  Margaret  Robinson,  absolutely.  This  deed  is  in  the 
following  words : 

"  State  of  North  Carolina,  Xew  Hanover  County. 

"This  indenture,  made  this  the  1st  day  of  July,  in  the  year 
of  our  Lord  one  thousand  seven  hundred  and  fifty-eight,  be- 
tween Margaret  Robinson  of  the  State  and  county  aforesaid, 
of  the  first  part,  and  William  Sanderlin  of  the  State  and 
county  aforesaid  of  the  second  part,  and  AVilliam  Robinson 
and  John  A.  Corbitt  of  the  State  and  count}-  aforesaid  of  the 
third  part,  witnesseth,  that  whereas  a  marriage  is  about  to 
be  solemnized  between  the  said  Margaret  Robinson  and  Wil- 
liam Sanderlin,  and  it  is  agreed  by  and  between  the  said  Mar- 
garet Robinson  and  William  Sanderlin,  that  if  the  said  mar- 
riage should  take  eftect,  then,  notwithstanding  the  said  mar- 
riage, he  the  said  William  Sanderlin,  his  heirs,  executors,  ad- 
ministrators or  assigns,  shall  not  intermeddle  with,  or  have 


156  IN  THE  SUPREME  COURT. 

SanderliD  v.  Robinson. 

any  right,  title  or  interest  in  law  or  equity,  in  or  to  any  part 
of  the  estate,  real,  )3ersonal  or  perishable,  now  belonging  to 
Margaret  Robinson.  Now,  this  indenture  witncsseth,  that  for 
the  making  the  said  agreement  good  and  effectual  in  law,  and 
for  the  keeping  and  preserving  the  several  estates  above  men- 
tioned, to  and  for  the  separate  use  of  her  the  said  Margaret  Ro- 
binson, during  her  life,  and  should  she  die  without  issue,  then 
the  said  estate  to  return  to  her  present  heirs,  before  the  mar- 
riage, and  so  that  the  same  shall  not  be  in  the  i)ower  or  dispo- 
sal of  the  said  William  Sanderlin,  or  liable  to  the  payment  of 
his  debts  and  incnmbi-ances,  he  the  said  William  Sanderlin 
doth  for  himself,  his  executors  and  administrators,  covenant, 
promise  and  agree,  that  all  the  profits  or  increase  tliat  here- 
after shall  be  made  of  the  same  shall  be  ordered,  disposed 
and  employed  by  tiie  said  William  Robinson  and  J.  A.  Cor- 
bitt,  trustees,  for  such  uses  and  interests  and  purposes,  and  in 
such  manner  and  form  as  the  said  trustees  ma}^  think  proper, 
and  it  shall  also  be  lawful  for  the  said  trustees  at  any  time, 
from  and  after  the  said  marriage  shall  take  effect,  to  com- 
mence any  action  or  suit  in  law  or  equity  against  any  person 
or  persons  for  recovering  to  the  said  Margaret  Robinson,  the 
said  trustees  doth  promise  and  agree  for  themselves,  their  heirs 
and  assigns,  to  do  and  execute  all  and  ever}^  such  further  actor 
acts  for  the  better  settling,  receiving  the  moneys,  goods  and 
estates  of  the  said  Margaret  Robinson,  declared  for  her  sepa- 
rate use  and  benefit,  provided  also,  and  it  is  concluded  and 
agreed  by  and  between  all  the  said  parties  to  these  presents, 
that  the  said  trustees  shall  be  indemnified  and  saved  harmless 
out  of  the  said  separate  estate  of  the  said  Margaret  Robinson, 
from  all  manner  of  costs,  charges,  datnagcs  or  any  trouble 
which  they  nuiy  sustain  or  incur  for  recovering  any  part  of 
the  estate  of  the  said  Margaret  Robinson,  or  any  other  ac- 
count whatever  relating  to  the  said  separate  estate." 

This  deed  is  signed  and  sealed  by  all  the  parties  thereto, 
and  in  the  presence  of  two  attesting  witnesses;  and  it  was 
read  over  to  the  parties  a  few  minutes  before  the  ceremony, 
Sanderlin  remarking  at  the  time  that  he  did  not  understand  it, 


DECEMBER  TEUM,  1860.  157 


Sanderlin  v.  Robinson. 


but  would  sign  it,  as  he  was  not  man^infr  f<M*  money.  The 
complainant,  Margaret,  at  the  tiiue  of  her  mariiagc,  was 
about  forty-five  years  of  age,  and  was  a  woman  of  fair  under- 
standing, though  of  limited  education.  The  deed,  in  question, 
was  prepared  by  the  direction  of  the  brothers  of  complainant, 
Margaret,  and  was  presented  to  her  and  Sanderlin  for  the  first 
time,  just  before  the  ceremony. 

It  was  in  evidence  that  a  deed  had  been  prepared  at  there- 
quest  of  Margaret,  in  which  was  reserved  to  her  the  right  of 
disposing  of  hei-  property,  during  coverture  and  afterwards, 
should  she  survive,  and  this  being  unsatisfactory  to  the  broth- 
ers, they  had  the  one  in  question  prepared  as  above  recited. 

There  was  much  testimony  taken,  but  in  view  of  the  case 
taken  by  the  Court,  the  Reporter  deems  it  unnecessary  to  set  it 
out.  The  bill  is  filed  to  have  the  marriage  articles  reformed 
and  corrected,  so  as  to  settle  and  secure  the  real  and  person- 
sonal  estate  of  complainant,  Margaret,  to  her  sole  and  separate 
use,  with  power  to  dispose  of  the  same  at  an}'  time  in  such 
manner  as  she  ma}'  think  proper,  and  for  general  relief. 

Tiic  cause  being  set  for  hearing  upon  bill,  answers,  exhibits 
and  proofs,  was  sent  to  this  Coui't  by  consent. 

IF.  A.  Wright,  for  the  plaintiff's. 
Person  and  Strange,  for  the  defendants. 

Battle,  J.  Tiie  bill  is  filed  for  the  purpose  of  having  a 
marriage  contract,  alleged  to  have  been  executed  by  the 
plaintiffs  upon  a  misapprehension  and  mistake  of  its  terms, 
corrected,  and  a  settlement  made  in  conformit}'  with  the  real 
intention  of  the  parties.  There  are  some  allegations  of  fraud, 
and  undue  influence  exercised  over  the  feme  plaintiff", 
which  are  not  sustained  by  any  competent  testimony,  and 
which  we  shall,  therefore,  dismiss  from  our  consideration. 
Indeed,  it  is  hardly  necessary  for  us  to  notice  tlie  extrinsic 
testimony,  in  relation  to  the  execution  of  the  contract  at  all, 
except  merely  to  say,  that  it  tends  to  support  the  inference, 
which  the  law  draws  from  the  terms  of  the   contract   itself, 


'i%8  IN  THE  SUPREME  COURT. 

Sanderlin  v.  Robinson. 

that  they  are^^cr  se  a  fraud  upon  the  rights  of  the  feme  plain- 
tifl",  and  must  be  relieved  against  in  this  Court. 

The  property,  which  the  parties  intended  to  settle  by  the 
instrument  which  they  executed,  belonged,  before  the  mar- 
riage, exclusively  to  the  woman.  By  the  contract,  she  is 
made  to  give  up  her  right  to  dispose  of  it,  by  deed,  or  other- 
wise, not  only  during  coverture,  but  even  after  the  death  of 
the  husband,  in  the  event  of  her  surviving  him.  More  than 
this,  she  renounces  the  privilege  of  receiving  and  disposing  of 
the  rents  and  profits  of  the  estate  during  the  coverture,  the 
instrument  providing  that  they  shall  be  "  ordered,  disposed, 
and  employed  by  the  trustees  for  such  uses,  interests  and  pur- 
poses, and  in  such  manner  and  form  as  the  said  trustees  may 
think  proper."  As  a  final  disposition  of  the  estate,  it  is  after 
a  life-estate  reserved  to  her,  limited,  "  in  default  of  her  issue,  to 
return  to  her  present  heirs  before  marriage."  The  provision  in 
favor  of  her  issue,  could  hardly  have  been  expected  to  amount 
to  much,  when  it  was  remembered  that  she  had  arrived  at 
the  age,  at  which  women,  ordinarily,  cease  to  have  ofi'spring. 
The  case,  then,  presents  this  singular  result,  that  a  woman  of 
the  mature  age  of  forty-six,  having  a  comfortable  estate  in 
land  and  slaves  is,  for  the  privilege  of  getting  married,  in- 
duced by  her  brothers,  to  enter  into  a  contract,  by  which  her 
intended  husband  is  deprived,  not  only  of  any  benefit  to  be 
derived  from  her  property  during  coverture,  but  of  every 
possibility  of  getting  it,  or  any  part  of  it,  after  her  death, 
should  he  be  the  survivor  ;  she  submits  to  have  her  fee  simple 
estate  in  the  lands,  and  her  absolute  estate  in  the  slaves  cut 
down  to  a  life-estate  ;  her  power  of  disposing  of  the  property 
is  taken  away,  both  during  and  after  coverture,  and  even  the 
rents  and  profits  are  to  be  expended  by  the  trustees  as  they 
may  think  proper  ;  and  it  is  substantially  limited  after  her 
death,  to  persons,  who  are  her  relations  indeed,  but  entire 
strangers  to  the  consideration  upon  which  the  contract  was 
founded. 

Such  a  contract,  unless  proved  by  the  clearest  testimony  to 
have  been  fiilly  understood  and  freely  assented  to  by  the  in-- 


DECEMBER  TEEM,  1860.  159 

Sanderlin  v.  Robinson. 

tended  wife,  must  be  declared  to  be  fraudulent  as  to  her.  In 
laying  down  this  proposition,  we  are  fully  sustained  by  the 
decision  of  this  Court  in  the  case  of  Scott  v.  Duncan^  1  Dev, 
Eq.  Rep.  403.  There,  a  settlement  and  not  a  mere  contract 
for  a  settlement  was  made,  in  which  the  estates  were  settled, 
to  the  use  of  the  husband  and  wife  for  their  joint  lives,  but 
not  subject  to  his  debts  or  disposal  ;  and  if  she  survived,  to 
her  for  life  ;  and  upon  her  death,  without  issue  living,  over 
to  her  two  sisters  and  their  children.  Ruffin,  J.,  who  deliv- 
ered the  opinion  of  the  Court,  made  some  remarks,  so  appli- 
cable to  the  case  before  us,  that  we  cannot  do  better  than 
quote  his  language : 

"  A  most  important  circumstance  presents  itself  to  our  con- 
sideration upon  first  opening  this  case.  The  deed  is  an  ab- 
solute and  iri'e vocable  dis])osition  of  the  property,  although 
made  by  a  person  who  was  not  likely  to  have  issue.  That 
an  absolute  settlement  should  be  made  on  the  children  of  the 
marriage,  would  not  surprise  us.  We  should  expect  that  the 
husband  would  require  it,  and  not  leave  it  to  the  wife,  with- 
out his  consent,  or  that  of  the  trustee,  to  appoint  it  away  to 
strangers,  or  to  the  issue  of  another  marriage.  But  here,  is- 
sue, though  mentioned  in  the  deed,  could  hardly  have  been 
anticipated  by  a  lady  of  fifty  years  of  age.  In  such  a  case, 
the  want  of  a  power  of  revocation  and  reappointment  astpn- 
ishes.  It  is  against  the  proneness  of  the  human  heart  to  re- 
tain the  dominion  over  property.  But  if  we  are  surprised  at 
finding  no  such  power  reserved  to  the  wife  during  the  cover- 
ture,  how  much  more  must  we  be  struck,  when  we  come  to 
see,  that  although  the  deed  contemplates  her  surviving  the 
husband,  yet,  in  that  event,  also,  her  hands  are  perfectly  tied. 
Her  estate  does  not  become  her  own  again,  tliough  her  neces- 
sities may  require  a  sale.  She  is  not  even  allowed  to  devise 
it  among  her  oM-n  relations.  This  deed  fixes,  by  irreversible 
doom,  the  course  of  the  lady's  estate,  against  her  own  neces- 
sary use  of  it,  and  power  of  reasonable  disposition  after  dis- 
coverture  ;  and  this,  not  as  against  her  own  children,  but  as 
.to  collaterals,   who   are  strangers  to  the  consideration  upon 


160  i:n  the  supreme  court. 


Sanderlin  v.  Robinson. 


which  it  was  made.  It  is  impossible  for  a  court  of  justice  to 
say  that  any  extrinsic  evidence — any  thing  out  of  the  deed 
itself,  could  entirely  remove  the  suspicion  of  fraud,  or  of  mis- 
take, arising  from  gross  ignorance  in  the  parties,  which  these 
strange  omissions  create.  Nothing  but  imposition,  or  taking 
advantage  of  a  fatuous  confidence,  could  bring  to  the  point  of 
actual  execution,  such  an  instrument.  Upon  the  face  of  the 
deed,  it  is  fraudulent." 

If  there  were  any  words  of  conveyance,  in  the  instrument 
now  before  us,  by  which  the  property  of  the  wife  was  con- 
veyed to  the  trustees,  the  case  would  be  almost  identical  with 
that  oi^  Scott  V.  Duncan,  in  the  facts,  as  it  is  entirely  so  in  the 
principle;  for  it  is  evident,  that  the  principle  must  be  the 
same,  so  far  as  the  instrument  may  be  affected  by  fraud  or 
mistake,  whether  it  be  an  actual  settlement  or  a  mere  con- 
tract for  one.  In  either  case,  the  court  of  equily  has  juris- 
diction to  reform  it,  by  directing  the  execution  of  a  deed  of 
settlement  in  accordance  with  the  proved  or  admitted  inten- 
tion of  the  parties.  It  may  not  be  improper  to  notice  here, 
that  the  bill  treats  the  present  instrument  as  a  mere  contract 
for  a  settlement,  and  not  an  actual  settlement,  as  seemed  to 
be  supposed  by  the  counsel  for  the  defendant,  in  his  argu- 
ment before  us. 

We  have  already  remarked,  that  the  extrinsic  evidence  so 
far  from  rebutting  the  legal  inference  of  fraud  or  mistake, 
arising  from  the  instrument  itself,  tends  to  confirm  it.  A  part 
of  that  evidence  is,  that  the  instrument,  in  question,  was  read 
over  to  the  intended  husband  and  wife,  and  was  executed  by 
them  just  befoi-e  the  marriage  ceremony  was  performed. — 
Upon  that  circumstance,  an  argument  is  founded,  that  if  the 
parties  to  the  marriage,  knew  the  contents  of  the  instrument, 
and  mistook  its  legal  effect,  they  cannot  have  relief;  as  there 
is  a  well  established  distinction  between  a  mistake  as  to  a 
matter  of  fact,  and  one  as  to  a  matter  of  law.  The  case  of 
tScott  V.  Duncan,  to  which  we  have  already  alluded,  affords 
us  the  following  satisfactory  reply  to  a  similar  objection. 
"  But  it  is,  then  a  reliance  that  the  deed  was  read  over  to  her ; 


DECEMBiiR  TERM,  1860.  161 

Sanderlin  v.  Robinson. 

and  it  is  argued  that  a  mistake  of  its  legal  operation,  could 
not  be  averred.  It  is  clear,  that  where  the  parties  are  per- 
fectly aware  of  the  actual  contents  of  the  deed  and  each, 
acting  on  his  own  judgment,  or  that  of  his  counsel,  omits  to 
insert  a  clause,  for  fear  it  may  afl'ect  the  deed  in  law,  they 
cannot  be  helped.  But  here,  the  question  is  one  of  imposi- 
tion and  abuse  of  contidence.  The  very  enquiry  is,  whether 
she  did,  in  fact,  know  and  understand  what  was  in  the  deed 
and  what  was  not.  It  was  read  to  her,  it  is  true ;  but  what 
a  time  to  produce  a  complicated  marriage  settlement  to  an 
uninstructed  female,  dressed  for  her  marriage  !  AVas  it  read 
to  her  in  the  hope  that  she  would  or  would  not  understand  it?. 
To  whom  could  she  apply  for  advice,  but  to  the  very  person 
who  had  contrived  the  imposition  on  her.  I  wonder  that  she 
had  not  signed  and  scaled  without  a  question."  These  re- 
marks are  almost  as  pertinent  and  applicable  to  the  facts  of 
case  before  us,  as  to  tliat  wherein  they  were  made.  Our  con- 
clusion then  is,  that  the  feme  plaintiff  is  clearly  entitled  to 
relief  against  the  contract,  which  she  was  induced  to  execute 
in  conteuiplation  of  her  marriage.  We  are  equally  clear,  that 
the  husband  is  also  entitled  to  have  the  settlement,  which 
must  be  decreed,  so  arranged  as  to  leave  him  the  chance  of 
having  the  slaves  and  other  personal  property,  appointed  for 
his  use,  by  a  will,  or  an  instrument  in  the  nature  of  a  will, 
executed  by  his  wife,  during  coverture.  The  husband  was 
probably  as  much  ignorant  of  the  contents  of  the  instrument, 
which  he  executed,  as  was  his  wife.  But  even  supposing  that 
he  knew  its  contents,  he  was  called  upon  to  execute  it  under 
such  circumstances  as  to  make  it  inoperative  against  him,  ex- 
cept so  far  as  we  can  infer  that  he  freely  assented  to  it.  A 
settlement  by  which  the  intended  wife's  property  w'as  to  be 
so  settled  to  her  sole  and  separate  use,  as  to  keep  it  free  from 
the  intended  husband's  debts  and  incumbrances  during  the 
coverture,  was  certainly  in  the  contemplation  of  the  parties, 
and  to  that  intent,  he  is  bound  by  his  contract,  but  we  can- 
not believe  that  ho  freely  excluded  himself  from  any  benefit, 
or  possibility  of  benefit,  from  her  property,  not  only  during 

11 


162  IN  THE  SUPREME  COURT. 

Sanderlin  v.  Robinson. 

the  coverture,  but  even  after  it,  although  lie  might  be  the 
survivor ;  see  Taylo?'  v.  BicTcman^  Busbee's  Eq.  278. 

The  proper  decree,  if  drawn  in  accordance  with  tlie  princi- 
ple of  our  decision,  will  be,  that  the  property,  real  and  per- 
sonal, mentioned  in  the  marriage  contract,  referred  to  in  the 
pleadings,  shall  be  conveyed  to  some  suitable  person,  as  trus- 
tee, in  fee  as  to  the  land,  and  absolutely  as  to  the  slaves  and 
other  chattels,  in  trust,  for  the  sole  and  separate  use  of  the 
wife  during  coverture,  and  if  she  should  survive  her  husband, 
then  in  trust  for  her  in  fee  of  the  land,  and  absolutely  of  the 
personalty,  but  if  she  should  die  without  issue,  during  cover- 
ture, then  to  her  heirs-at-law  and  next  of  kin  exclusive  of  her 
husband,  with  a  power  of  revocation  and  appointment  by  a 
a  will,  or  by  a  paper-writing,  properly  attested  by  two  cred- 
ible witnesses,  in  the  nature  of  a  will,  executed  during  cover- 
ture, in  case  she  died  during  the  life-time  of  her  husband. 
Such  a  settlement  will  give  to  the  wife  as  much  control  over 
her  estate,  as  she  can  be  allowed  to  exercise,  without  being 
liable  to  the  improper  influence  of  her  husband  ;  and  will 
restore  to  her  the  complete  ownership,  in  the  event  of  hersurviv- 
ing  him.  It  will  give  effect  to  the  disposition,  contained  in  the 
contract  of  settlement,  in  favor  of  those  whom  she  therein 
calls  "  her  present  heirs  before  marriage,"  in  case  of  her  dy- 
ing without  issue  during  the  coverture,  unless  she  chooses 
to  dispose  of  it  to  her  husband  or  to  some  other  person,  by 
the  exercise  of  the  power  of  revocation  and  appointment,  re- 
served to  her,  to  be  exercised  during  coverture,  by  means  of 
a  will  or  a  paper-writing  in  the  nature  of  a  will.  TJie  plain- 
tiffs are  entitled  to  their  costs  against  the  defendants,  Daniel 
and  William  Robinson,  and  must  pay  costs  to  the  defendant, 
Corbett.     The  other  defendants  must  pay  their  own  costs. 

Per  Curiam,  Decree  accordingly. 


DECEMBER  TERM,  1860.  163 


Scales  V.  Scales. 


CHARLOTTE  C.  SCALES,  Executrix,  against  PETER  SCALES  AND 

OTHERS. 

Courts  of  equity  will  not  anticipate  and  decide  questions,  which  cannot  be 
attended  with  any  present  practical  results. 

Where  a  testator  bequeathed  certain  of  his  property,  specifically,  and  then 
provided,  "  the  balance  of  my  estate  to  be  sold  and  the  proceeds  divided 
among  my  children  hereinafter  named,"  it  was  held  that  the  bonds,  notes 
and  accounts  due  the  testator,  and  the  cash  on  hand,  were  not  embraced  by 
this  clause. 

A  legacy  to  a  grand-daughter,  who  died  before  the  will  was  made,  is  void. 

Cause  removed  from  the  Court  of  Equity  of  Rockingham 
count}'. 

The  bill  is  filed  by  Charlotte  Scales,  the  executrix  of  the 
last  will  and  testament  of  James  Scales,  deceased,  and  prays 
the  aid  of  the  Court  in  construing  the  said  will,  which  is  as 
follows  :  "  First.  I  give  unto  my  beloved  wife,  Charlotte  C. 
Scales,  the  tract  of  land,  whereon  I  now  live,  containing  eight 
hundred  and  five  acres,  for  and  during  her  natural  life,  or  so 
long  as  she  may  continue  a  widow,  but  in  case  she  marries 
again,  to  have  one-third  part  thereof;  also,  I  lend  her  the  fol- 
lowing negroes,  during  her  life,  to  wit,  Daniel,  Smith,  John, 
Leathy,  Agg}-,  America,  and  each  of  their  youngest  children, 
Mitchell,  rinckne}',  Henry  and  Granville,  three  head  of  hors- 
es, four  cows  and  calves,  six  beef  cattle,  twenty  head  of  hogs," 
&c.,  *  *  *  "  and  after  the  death  of  my  wife,  I  give  the 
said  tract  of  land  to  my  three  youngest  children,  Elizabeth, 
Susan  and  Nicholas  Dalton,  to  be  equally  divided  between 
them. 

2nd.  "I  give  to  my  sons,  Peter  and  Hamilton  Scales,  the 
tract  of  land  Peter  now  lives  on. 

"  Item  3rd.  I  give  to  my  son,  Peter  Scales,  three  negroes, 
Martha,  Charles  and  York. 

''  Item  -Ith.  I  give  to  my  son,  James  Scales,  two  negroe&5 
Peggy  and  Sabry,  and  four  hundred  dollars. 

"Item  5th.  I  give  to  my  son,  Hamilton  Scales,  three  ne- 
groes, Joseph,  (jr.)  Frank  and  Alexander. 

"  Item  6th.  I  give  to  my  son,  Rawley  Scales,  three  negroes, 
Bnrch,  Biddy  and  Sam." 


164  m  THE  SUPREME  COURT. 

Scales  V.  Scales. 

In  the  succeeding  clauses  of  the  will,  the  testator  gives  a 
number  of  specific  legacies  of  slaves  and  several  pecuniary 
legacies.  The  13th  Item  is  as  follows:  "I  give  to  my  two 
grand-daughters,  Mary  Ellington  and  Lucy  V.  Irwin,  one 
hundred  and  fifty  dollars  each."  The  will  then  concludes  as 
follows :  "  My  will  and  desire  is,  that  the  balance  of  my  es- 
tate, not  disposed  of,  be  sold,  and  the  money  equally  divided 
between  my  children,  hereinafter  named,  to  wit :  Peter, 
James,  Hamilton,  Robert,  Rawley,  Elizabeth,  Nicholas  D. 
and  Susan,  after  deducting  as  much  as  will  pay  for  a  tomb- 
stone for  my  grave,  containing  my  name  and  age  ;  also,  the  ne- 
groes and  other  property  loaned  to  my  wife,  during  her  life, 
after  her  death,  be  sold,  and  the  money  equally  divided  be- 
tween all  my  children,  agreeable  to  law ;  and  lastly,  I  consti- 
tute and  appoint  my  beloved  wife,  Charlotte  C.  Scales,  my 
executrix,  of  this  m}'-  last  will  and  testament." 

The  bill  praj's  to  be  instructed  :  Firstly.  Whether  the  plain- 
tiff, Charlotte  C.  Scales,  takes  absolutely,  the  horses,  cows  and 
calves,  beef  cattle,  hogs,  money,  &c.,  given  her  in  the  first 
item  of  the  will,  or  whether  she  takes  only  a  life-estate,  and 
if  the  latter,  then  how  far  she  may  become  responsible  for 
such  as  shall  be  consumed  or  lessened  in  value,  by  the  use. 

Secondly.  Do  the  bonds,  notes  and  accounts  due  the  tes- 
tator, and  the  cash  on  hand,  fall  into  the  residuary  fund,  cre- 
ated by  the  last  clause  of  the  will  ?  or  did  the  testator  die  in- 
testate as  to  them  ? 

Thirdly.  The  bill  sets  out  that  Mary  Ellington,  to  whom 
the  testator  bequeathed  a  pecuniary  legacy  of  one  hundred 
and  fifty  dollars,  by  the  13th  clause  of  his  will,  died  befoi-e 
said  will  was  made,  leaving  several  children  surviving  her, 
and  it  prays  the  advice  of  the  Court,  whether  this  legacy 
vested  in  her  children,  as  the  representatives  of  their  deceas- 
ed parent,  or  did  the  testator  die  intestate  as  to  this  fund?  or 
does  it  fall  into  the  residuum,  created  by  the  last  clause  of  the 
will? 

Fourthly.  The  bill  alleges  that,  at  the  making  of  the  will, 
the  testator  had  only  one  slave,  named  Alexander,  a  child  of 


DECEMBER  TERM,  1860.  165 


Scales  V.  Scales. 


the  woman,  Aggy,  then  about  eighteen  months  old  ;  by  the 
5th  clause  of  the  will,  the  testator  gives  to  his  son,  Hamilton, 
slaves,  Joseph,  (jr.)  Frank  and  Alexander  ;  by  the  first  clause, 
he  gives  to  his  wife,  for  life,  woman  slave,  Aggy,  and  her 
youngest  child.  At  the  time  the  will  was  made,  this  child, 
Alexander,  was  Aggy's  youngest  child,  though  she  had  an- 
other, born  between  the  making  of  the  will  and  the  testator's 
death.     To  whom  does  Alexander  belong? 

Fifthly.  The  bill  further  shows  that,  at  the  death  of  the 
testator,  there  was  a  crop  growing  on  the  land  devised  to  the 
plaintiff,  and  that  she  kept  some  of  the  negroes,  Specifically 
i3equeathcd  to  herself  and  to  testator's  children,  on  the  land, 
in  order  to  mature  tlie  crop ;  that  this  crop,  when  so  matur- 
ed, passes  into  the  residuum,  in  which  she,  and  some  of  the 
children,  whose  slaves  she  employed,  have  no  interest.  Are 
they  entitled  to  an  allowance  for  the  hires  of  the  slaves,  em- 
ployed in  cultivating  the  crop. 

The  cause  being  set  for  hearing  upon  bill,  answer  and  ex- 
hibits, was  sent  to  this  Court  by  consent. 

'No  counsel  appeared  for  the  plaintifi^  in  this  Court. 
Morehead,  IlcLean  and  Gorrcll,  for  defendants. 

Battle,  J.  The  bill  is  filed  by  the  executrix  of  James 
Scales,  deceased,  for  the  purpose  of  obtaining  the  advice  of 
this  Court,  as  to  the  construction  of  the  will  of  her  testator,  in 
several  specified  particulars. 

1.  Tiie  executrix  wishes  to  know  whether  she  has  an  abso- 
lute interest  or  only  a  life-estate  in  certain  property  of  a  per- 
ishable kind,  and  if  the  latter,  how  far  she  may  be  responsible 
for  its  consumption  in  the  use  ;  and  also  how  the  proceeds  of 
the  slaves,  given  to  her  for  life,  and  then  to  be  sold,  are  to  be 
divided.  Those  are  questions  which  will  arise  after  her  death, 
and  she  has  no  interest  in  having  them  decided  now.  We  have 
often  said  that  we  will  not  anticipate  and  decide  questions, 
which  cannot  be  attended  witii  any  present  practical  results. 

2.  The  residuary  clause  of  the  will,  does  not  include  the 
money  on  hand,  or  that  due  on  bonds,  notes  and  accounts, 


166  IN  THE  SUPREME  COUET. 

Scales  V.  Scales. 

because  it  cannot  be  presnraed  that  the  testator  intended 
them  to  "be  sold."  The  case  of  Pippin  v.  Ellison^  12  Ire. 
liep.  61,  is  a  direct  antliority  upon  this  question.  This  fund 
i-s,  therefore,  undisposed  of  by  tlie  will,  and  must,  after  the 
pajauent  of  debts  and  the  pecuniar}'-  legacies,  for  which  it  is 
primarily  liable,  be  divided  amongst  the  testator's  next  of  kin, 
according  to  the  statute  of  distributions.  The  residuary  clause, 
however,  imposes  the  expense  of  procuring  a  tonvbstone  for 
the  testator,  upon  the  proceeds  of  the  property  therein  dii'ect- 
ed  to  be  sold. 

3.  The  legacy  to  the  grand-daugljtei-,  Mary  Ellington,  whO' 
died  before  the  testator's  will  was  made,  was  void,  and  did  not 
become  vested  in  her  cliildi-en,  because  there  was  no  person 
in  existence  to  answer  the  description,  contained  in  the  will, 
at  the  time  when  it  was  made,  or  at  any  other  time  during; 
the  life  of  the  testator.  Tiie  Revised  Code,  ch.  119,  sec.  28, 
differs  from  the  Revised  Statutes,  chap.  122,  sec.  15,  in  using 
the  words  "  cliild  or  other  issue"  iiistead  of  child  or  childj-en, 
which  would  include»a  grand-child,  if  sucli  were  living  and 
capable  of  being  a  legatee  at  the  publication  of  the  will,  but 
we  think  it  cannot  embrace  one  then  dead.  The  statute  was 
intended  to  apply  to  a  lapsed  and  not  a  void  legacy.  This 
legacy  being  void,  does  not  pass  under  the  residnar_y  clause, 
for  the  reason  given  in  the  answer  to  the  next  preceding  ques- 
tion, but  is  distributable  among  the  next  of  kin. 

4.  The  slave,  Alexander,  does  not  pass  to  the  widow,  be- 
cause, at  the  death  of  the  testator,  when  the  will  speaks,  he 
was  not  his  mother's  youngest  child  ;  but  he  does  pass  to  tlie 
testatoi-'s  son,  Ilaniilton,  because  he  answers  the  description 
given  in  the  will,  in  every  particular,  and  there  is  no  rooui 
for  extrinsic  proof,  because  there  is  no  latent  an)bigaity.  The 
youngest  child  of  Aggy  will,  of  course,  belong  to  tJie  widow, 
for  life. 

5.  The  owners  of  the  several  slaves,  who  were  employed  iii 
the  cultivation  of  the  crop,  will  be  entitled,  respectively,  to  their 
hires.     For  this,  see  Hmrell  v.  Davenport,  5  Jones'  Eq.  4. 

Per  Curiam,  Pecree  accordingly. 


DECEMBER  TERM,  1860.  167 


Latham  v.  Moore. 


SIMON  J.  LATHAJiI  AND  OTHERS  against  GILBERT  L.  MOORE  AND 
OOHN  J.  SIIERROD. 

Where  one  takes  a  note  of  the  estate  from  an  administrator,  mala  fide,  as  for 
'     instance,  in  payment  of  the  administrator's  own  debt,  he  cannot  hold  the 
fund  from  the  next  of  kin,  or  tliose  who  are  entitled  to  be  substituted  in 
their  place,  unless  the  administrator  was  in  advance  for  the  estate. 

Cause  removed  from  the  Court  of  Equity  of  Martin  county. 

The  defendant,  Gilbert  L.  Moore,  as  the  administrator  of 
one  Daniel  Ward,  sold  lands  belonging  to  the  estate,  to  one 
E.  W.  Cox,  who  gave  his  note  for  the  purchase-mone}', 
amounting  to  $2,500,  dated  the  8th  of  October,  1857.  Dur- 
ing the  life-time  of  Daniel  Ward,  the  intestate  of  defendant, 
Moore,  the  defendant,  Sherrod,  held  his  notes  to  the  amount 
of  $1,300,  and  Gilbert  L,  Moore  was  also  indebted  to  him, 
Sherrod,  in  the  sum  of  $700,  and  at  the  request  of  Moore,  who 
had  qualilied  as  the  administrator  of  Ward,  Sherrod  assigned 
to  him  the  said  notes  against  the  intestate,  and,  in  considera- 
tion of  such  assignment,  and  of  his  own  indebtedness,  Moore 
gave  his  bond,  payable  to  Sherrod,  for  two  thousand  dollars, 
with  Friley  W.  Moore  as  surety,  dated  the  1st  of  January, 
1855,  and  bearing  interest  from  date.  Afterwards,  at  the  re- 
quest of  Moore,  Sherrod  took  from  him  the  note  on  E.  W. 
Cox,  which,  with  interest  accrued,  amounted  to  $2,534.58, 
and,  in  payment  tiiei-efor,  gave  him  $200  in  casii,  a  note  on 
Colin  E.  S'pruill  for  $859.20,  and  gave  credit  on  the  $2000 
note  of  Gilbert  Moore  and  Friley  W.  Moore,  for  the  residue 
of  the  $2,534.58,  viz.  $1,475. 

Ward,  in  his  life-time,  was  guardian  of  the  minor  children 
of  one  Powell,  and  a  judgment  for  the  sum  of  $1380.48  was 
recovered  against  Gilbert  Moore,  as  administrator  of  said 
Ward,  and  also,  against  the  sureties  on  his,  Ward's  guardian 
bond,  at  April  Term,  1857,  of  Martin  county  court,  for  money 
due  the  minor  children.  The  bill  is  filed  by  the  sureties  upon 
Ward's  guardian  bond,  and  the  sureties  upon  the  administra- 
tion bond  of  the  defendant,  Gilbert  L.  Moore,  and  alleges 
tlmt  he,  Moore,  has  wasted  the  assets  of  the  intestate's  estate 


168  IK  THE  SUPREME  COUET. 

Latham  v.  Moore. 

to  a  large  amount,  and  is  now  insolvent,  having  made  an  as- 
signment of  all  his  property  for  the  benefit  of  certain  of  his 
creditors ;  that  creditors  of  the  estate  have  obtained  j  iidgments 
against  the  administrator  to  a  large  amount,  and  have  sued 
out  writs  of  scire  facias  to  get  judgment  against  him  individ- 
ually ;  and,  that  as  a  consequence,  the  sureties  upon  his  ad- 
ministration bond  will  have  to  pay  the  debts,  to  the  amount 
■of  the  assets  so  wasted. 

The  praj'er  of  the  bill  is,  to  have  a  receiver  appointed  to 
take  into  possession  all  the  estate  of  Daniel  Ward,  that  can 
be  found,  and  apply  the  proceeds,  under  the  direction  of  the 
Court,  to  the  pa^'ment  of  debts,  and  that  the  defendant,  John 
J.  Sherrod,  be  ordered  to  surrender  the  note  on  E.  W.  Cox,  to 
be  applied  as  part  of  the  assets  of  the  estate ;  also,  for  an  in- 
junction to  restrain  him  from  parting  with  the  possession  of  it. 

Friley  W.  Moore,  mentioned  above,  as  the  surety  on  the 
bond  for  $2,000,  given  by  the  defendant,  Gilbert  L.  Moore,  to 
the  defendant,  Sherrod,  is  also  one  of  the  sureties  on  the  ad- 
ministration bond  of  Gilbert  L.  Moore,  and  is  one  of  the 
plaintiffs  to  this  bill.  Defendant,  Sherrod,  filed  a  cross  bill 
against  him,  setting  out  tlie  above  recited  facts,  and  also,  that 
Friley  W.  Moore,  as  surety,  had  paid  him  the  balance  due  on 
the  $2,000  note,  a  judgment  having  been  obtained  for  the 
same  in  the  county  court,  and  it  claims  that  Sherrod,  the  plain- 
tiff in  this  bill,  is  entitled  to  have  the  balance  on  the  $2,000 
note,  which  will  remain  unpaid  if  the  credit  was  erroneous, 
set  off  against  any  sum  to  which  the  said  Friley  W.  Moore 
■may,  by  the  decree  of  the  Court,  otherwise  become  entitled 
by  reason  of  the  purchase  of  the  said  note,  and  also,  that  Fri- 
ley and  Gilbert  Moore  ought  to  pay  the  plaintiff,  Sherrod,  the 
full  amount  of  what  he  may  be  compelled  to  refund  on  ac- 
count of  the  credit  of  $1,475.32  on  the  $2,000  note  alleged  in 
the  original  bill  to  have  been  erroneousl}^  given. 

Sherrod  admits  in  his  answer  to  the  original  bill,  and  also 
in  his  cross  bill,  that  he  M'as  aware  when  he  purchased  the 
note  in  question,  that  it  was  a  part  of  Ward's  estate,  but  alleg- 
es that  Gilbert  L.  Moore  was  in  advance  of  for  advancements 


DECEMBER  TERM,  1860.  169 

Latham  v.  Moore. 

made  for  the  benefit  of  the  estate,  and  had,  therefore,  a  right 
to  reimburse  himself  out  of  the  funds  of  the  estate.  In  ordei 
to  ascertain  the  truth  of  this  allegation,  an  account  was  ordered 
to  be  taken,  from  which  it  appeared  that  the  administrator,  Gil- 
bert L.  Moore,  was  in  advance  to  the  full  amount  of  the  credit  of 
$1,475.32  on  the  $2,000  note  of  Gilbert  and  Friley  Moore, 
less  $113.00. 

Upon  the  filing  of  the  cross  bill  and  answer,  the  cause  was 
set  for  hearing  upon  bills,  answers,  exhibits  and  proofs,  and 
transferred  to  this  Court  bj'  consent. 

Winston^  Jr.^  for  the  plaintiff. 
Hodman^  for  the  defendant. 

Pearson,  C.  J.  An  administrator  has  a  right  to  sell  or  dis- 
count a  note  belonging  to  the  estate,  for  the  legal  title  is  in 
him,  and  the  exigenc}'  of  the  estate  ma}^  make  the  conversion 
expedient.  But,  when  one  takes  a  note  of  the  estate  from  an 
administrator,  malajide,  as  for  instance  in  payment  of  his  own 
debt,  so  as  to  be  a  guilty  participator  in  the  abuse  of  power, 
he  cannot  hold  the  fund  from  the  next  of  kin,  or  those  who 
are  entitled  to  be  substituted  in  their  stead,  unless  the  admin- 
istrator could  have  resisted  their  claim,  on  the  ground  that  he 
was  in  advance  for  the  estate,  and  consequentlj'  did  not  abuse 
his  power,  but  had  a  right  to  apply  the  note  to  his  own  pur- 
poses by  way  of  reimbursement ;  Wilson  v.  Doster.  "i  Ired. 
Eq.  231,  where  the  subject  is  fully  discussed,  and  the  cases  cited. 

In  respect  to  the  cash  payment,  $200,  and  the  payment  by 
means  of  Spruill's  note  $859,  the  transaction  does  not  come 
within  the  prohibition  of  the  rule  above  stated.  But,  in  re- 
spect to  the  sum  of  $1,475,  which  was  entered  as  a  credit  on 
the  note  of  the  administrator,  the  prohibition  does  apply, 
unless  the  administrator  was  in  advance  for  the  estate,  and  for 
that  reason  had  the  right  to  use  the  funds  of  the  estate  for  his 
reimbursement.  In  order  to  ascertain  how  this  matter  stood, 
an  account  was  taken,  by  which  it  appears  the  administrator 
was  in  advance  to  the  full  amount  of  the  credit,  less  the  sum 


170  m  THE  SUPREME  COURT. 

Lathfim  v.  Moore. 

of  $113.06.  So,  the  appropriation  was  riglitfnl  except  as  to 
that  aniouiit,  as  to  which  the  plaintifis  are  entitled  to  a  decree 
for  a  rateable  part  except  Friley  Moore,  whose  claim  is  affec- 
ted by  an  equity  of  the  defendant,  Sherrod,  which  is  sot  up 
by  the  cross  bill. 

Among  the  vouchers  of  the  administrator,  are  "  accounts 
paid,"  to  the  amount  of  $681.15,  and  it  seems  there  are  fiotes 
due  l)y  the  intestate  still  unpaid  to  the  amount  of  $1,576.52, 
and  the  question  was  suggested,  whether,  under  these  circum- 
stances, he  was  entitled  to  claim  the  amount  of  the  "  accounts 
paid"  as  so  much  advanced  foi-  the  estate.  We  can  see  no 
sufficient  i-eason  why,  he  is  not  so  entitled.  The  accounts 
paid  are  admitted  tu  have  been  just  debts  due  by  the  intes- 
tate. How  far  he  has  made  himself  liable  to  the  note  credi- 
toi's  by  not  giving  to  them  the  preference  to  which  they  are 
entitled  in  a  due  course  <>f  administration,  over  simple  con- 
ti'act  creditors,  is  not  now  the  question  ;  but  sinjply,  was  he 
in  advance  for  the  estate,  by  having  paid  off  debts  of  the  es- 
tate? If  so,  he  was  entitled  to  reimburse  himself  by  making 
an  aj)propriarion  of  the  ntjte  in  controversy  ;  at  all  events, 
that  fact  is  sutHcient  to  repel  the  equity  of  the  next  of  kin,  or 
the  plaintiffs  wlio  claim  to  be  substituted  in  their  stead,  to 
follow  the  fund  in  the  hands  of  the  defendant,  Sherrod. 

The  cross  bill  was  brought  to  a  hearing  with  the  original 
bill,  and  relieves  the  Court  tVom  any  embarrassment,  r.s  to  the 
manner  in  which  the  decree  should  be  modeled,  so  as  to  mete 
out  justice  to  all  of  the  parties.  Friley  Moore  was  the  sure- 
ty of  the  administrator  to  the  note  on  wliich  the  defendant, 
Slierrod,  entei'ed  the  credit.  So,  he  has  had  the  full  benefit 
of  it,  and  so  fai-  from  having  an  equitj^  to  hold  the  defendant, 
Sherrod,  responsible,  the  latter  has  a  plain  equity  against  him 
to  recover  so  mucli  of  the  $113.06,  as  is  recovered  of  him  by 
the  other  ))laintiffs  in  the  original  case,  for  in  effect,  he  w'ill 
have  paid  {hat  amount  on  a  note  to  which  the  said  Friley 
Moore  was  surety,  vvhicli  being  in  his  exoneration,  falls  under 
the  well  settled  doctrine  of  subrogation. 

Per  Cukiam,  Decree  accordingly. 


DECEMBER  TEEM,  1S60.  171. 


Clements  v.  Mitchell. 


L.  L.  CLEMENTS  a^cdnst  HENRY  MITCHELL  AND  OTHERS. 

Where  one  was  a  partner  in  a  linn  in  1855  and  in  1857,  bnl  alleged  that  for 
185G  he  was  not  a  partner,  and  that  his  withdrawal  was  evidenced  by  a  deed 
which  was  lost,  and  ittnrned  out  that  the  deed  had  been  destroyed  by  himself, 
and  he  answered  delusively  about  it,  and  it  appeared  that  he  had  acquiesced 
iiv  certain  acts  of  his  partner,  treating  him  as  a  partner,  it  was  declared  by 
the  Court  (hat  he  was  to  be  considered  as  a  partner  for  the  year  1856,  also. 

It  was  held  by  the  Court  that  the  destruction  of  the  deed  which  it  was  admit- 
ted explained  defendant's  connection  with  the  firm,  and  that  too,  after  ho 
knew  that  it  would  be  necessary  to  make  such  explanation,  aflorded  a  strong 
presumption  that  such  deed  committed  him  as  a  partner. 

Cause  removed  fiom  the  Coni't  of  Equity  of  Martin  county. 

In  January,  1851,  Joseph  Waldo  and  L.  L.  Clcn)cnts,  the 
pUiintiff,  entered  into  a  copartncrslii[)  as  merchants,  in  the  town 
of  Hamilton,  niider  the  name  and  style  of  "  Waldo  &,  Clem- 
onts,"and  did  liiisiness  dui'ing  theyears  of  1855, 1850,  and  until 
March,  1857,  when  the  copartnership  was  dissolved,  and  all  the 
ertects  of  the  firm  wei'e  transferred  to  the  plaintiff,  Clements, 
to  collect  and  pn}-  debts,  and  adjust  the  balance  between 
them. 

During  the  year  1855,  the  defendant,  Waldo,  was  in  co- 
paitnei'ship  witli  the  defendant,  Henry  Mitchell,  in  I'unning  a 
steam  saw  mill,  and  in  shijjping  andsellinglumbci-.  Dui'ing  this 
year,  the  latter  firm  had  considerable  dealings  with  the  firm  of 
V/aldo  &  Clements,  and  bought  goods  to  a  considerable  amount, 
which  was  paid  and  settled.  During  the  year,  1856,  the 
plaintiff  alleges  that  the  said  firm  of  Waldo  &  Mitchell  dealt 
still  more  largely,  to  wit,  to  the  amount  of  ,  and  again 

in  1857.  Waldo  became  insolvent,  and  in  Ajiril,  1857,  as- 
signed, by  deed,  all  his  intei-est  in  the  said  mill,  and  all  other 
partnership  property,  debts,  c*ce.,  to  the  defendant,  Mitchell, 
lo  enable  liim  to  pay  the  debts  of  the  concern.  The  i)laintifi" 
alleges  that  he  has  tVe(j[ueutly  called  on  the  defendant,  Jylitchell 
to  pay  to  him  the  saitl  debt  due  to  the  firm  of  Waldo  S:  Clem- 
ents, wliich  lie  has  refused  to  do.  The  i)rayer  of  the  bill  is  tor 
an  account  and  settlement  of  the  balance  between  these  two 
firms. 


172  IN  THE  SUPREME  COURT. 

Clements  v.  Mitchell. 

Mitchell,  in  his  answer,  says  that  in  January,  1856,  he  rent- 
ed his  interest  in  the  steam  saw  mill  to  one  William  Parr  for 
one  year,  witli  the  knowledge  and  consent  of  Waldo;  that  a 
part  of  this  arrangement  was,  that  the  lumber  on  hand  should 
be  sold  to  pay  the  former  debts  of  the  copartnership  of  Wal- 
do &  Mitchell,  and  that,  therefore,  for  the  year  1856,  he  was 
not  a  partner  with  Waldo  or  any  one  else  in  the  said  milling 
business;  that  this  contract  was  expressed  in  writing,  and  de- 
posited with  one  Daniels,  who  informed  him  that  it  is  lost  or 
destroyed. 

Waldo,  in  his  answer,  says  that  it  is  true  tliat  Mitchell  did 
agree  in  writing  to  let  Parr  take  his  place  in  the  business  of 
conducting  the  mill  and  lumber  business,  and  whether  the  le- 
gal effect  of  the  instrument  was  to  release  Mitchell  from  lia- 
bility for  the  debts  of  the  concern,  he  is  not  informed  ;  but, 
he  says,  "  notwithstanding  the  said  agreement,  he  was  of  opin- 
ion that  the  partnership  of  Waldo  and  Mitchell  existed  dur- 
ing the  year  •  1856  ;  that  he  therefore  continued  to  sign  the 
name  of  the  firm,  and  Parr  gave  orders  on  the  firm  of  Waldo 
&  Clements  in  the  name  of  Waldo  &  Mitchell ;  that  advances 
were  made  by  Waldo  &  Clements  during  that  year  on  such 
orders  and  goods  sold,  which  were  charged  to  Waldo  &  Mitch- 
ell;  arid  that  he,  Waldo,  as  a  partner  of  the  firm,  signed  a 
stated  account  admitting  a  balance  due  as  set  forth  in  the  plain- 
tiff's bill. 

It  appears  from   the   evidence  filed,  that  during  the  year 

1856,  Mitchell  was  aware  of  the  manner  in  which  the  entries 
were  made  in  the  books  of  Waldo  &  Clements,  and  though 
he  objected  to  it,  yet,  he  afterwards  acquiesced  in  it.  It  ap- 
pears, also  in   evidence,  that  Mitchell,  himself,  in   the   year 

1857,  destroyed  the  deed  in  question,  and  that  he  remarked 
to  Parr,  when  he  did  so,  that  it  was  of  no  further  use,  and 
might  as  well  be  torn  up.  Also,  that  Mitchell  was  a  man  of 
financial  means,  and  that  Parr  had  been  acting  as  engineer  in 
the  mill,  and  was  without  such  means. 

Reference  was  made  to  the  clerk  and  master,  who  stated 
the  account,  charging  Mitchell  with  the  debts  of  the  firm  for 


DECEMBER  TEUM,  1860.  173 

Clements  v.  Mitchell. 

1856,  to  which  he  excepted,  and  the  cause  was  heard  in  this 
Court  on  that  exception. 

JS.  F.  Moore  and  Donnelly  for  the  plaintiff. 
Winston,  Jr.  and  Hodman,  for  the  defendants. 

Pearson,  C.  J.  The  exception  of  the  defendant,  Mitchell, 
now  heard,  is  based  upon  tlie  allegation  that  he  was  not  a 
partner  of  Waldo,  during  the  year  1856.  This  allegation  is 
not  proved,  and,  consequently,  the  exception  must  be  over- 
ruled. 

Mitchell  admits  his  copartnership  with  Waldo  in  1855,  and 
also,  in  1857,  but  alleges  there  was  a  discontinuance  of  the 
copartnership  for  the  year  1856,  by  the  substitution  of  Parr 
in  his  stead  for  that  year,  which  he  insists  resulted  by  the 
force  and  effect  of  a  certain  instrument  of  writing  or  deed 
executed  by  Parr  and  himself,  with  the  knowledge  and  con- 
currence of  Waldo. 

This  deed  was  destroyed  by  Mitchell  in  1857,  and  he  re- 
marked to  Parr,  at  the  time,  "that  it  was  of  no  further  use, 
and  might  as  well  be  torn  up."  No  cop3'  of  it  was  preserved, 
and  the  testimony  in  respect  to  it  is  so  conflicting,  and  of 
such  a  character,  as  to  render  it  impossible  for  the  Court  to 
declare  what  were  its  contents.  We  are  fully  satisfied,  how- 
ever, of  this  fact,  that  although  the  nature  of  the  deed  may 
have  been  such  as  to  have  the  legal  effect  to  bring  Parr  in 
and  make  him  liable,  it  did  not  have  the  effect  to  put  Mitch- 
ell out  of  the  firm,  and  relieve  him  from  liability — the  origin- 
al purpose  of  the  arrangement  being  to  make  Parr  more  stir- 
ring in  his  superintendence  of  the  mills,  by  having  his  wages 
depending,  in  part,  on  the  profits. 

Without  entering  into  a  particular  examination  of  the  evi- 
dence, one  or  two  general  remarks  will  be  sufficient  to  show 
the  correctness  of  this  conclusion  : 

The  want  of  fairness  in  the  answer  of  Mitchell,  by  which 
he  attempts  to  make  the  impression  that  the  deed  liad  been 
"lost  or  destroyed"  without  any  agency  on  his  part,  when  it 


174  IN  THE  SUPREME  COURT. 

Clements  v.  Mitchell. 

is  proved  that  lie  had,  but  a  few  months  before,  actnallv  de- 
stroyed it  liiiiiself,  raises  a  presumption  aijainst  him,  under 
which  he  must  be  content  to  labor.  "Waldo  had  failed  at  the 
time  when  Mitchell  tore  up  the  paper;  so,  he  must  have  been 
aware  that  it  was  very  important  for  him  to  be  able  to  relieve 
himself  from  liability,  as  a  member  of  the  lirm,  and  if  the 
deed  had  been  of  the  character  which  he  now  pretends  it 
was,  he  would,  most  assuredly,  have  preserved  it.  The  fact, 
that  he  tore  up  the  deed,  saying  "it  was  of  no  further  use," 
is  entitled  to  more  weight  than  the  recollection  of  a  half  a 
dozen  witnesses  as  to  the  contents  of  a  paper  in  which  they 
had  no  particular  interest,  and  which,  it  is  not  alleged  con- 
tained any  direct  words  releasing  Mitchell,  and  substituting 
Parr  as  a  member  of  the  firm. 

Parr  was  only  a  workman,  and  had  no  means ;  Mitchell  was 
a  man  of  substance.  If  the  deed  was  of  the  character  now 
imputed  to  it,  can  it  be  seriousl}'^  insisted,  that  Waldo  would 
not  have  objected  to  the  arrangement  by  which  a  solvent  pai't- 
ner  was  to  be  withdrawn,  and  a  man  of  straw  put  it  his  place? 
Besides,  the  firm  of  Waldo  &  Mitchell,  in  the  year  1S55,  had 
been  doing  a  very  heavy  business ;  would  this  alleged  change 
have  taken  place  by  which  the  firm  of  "Waldo  (S:  Mitchell" 
was  dissolved  without  a  settlement  or  some  more  definite  pro- 
vision for  paying  oft'  the  debts  and  dividing  the  ])rofits,  than 
a  mere  understanding  that  the  lumber  on  hand  was  to  be  ap- 
plied to  the  discharge  of  debts  due  for  the  past  year,  unac- 
companied by  any  statement  of  the  amount  of  debts,  or  the 
quantity  of  lumber? 

Waldo,  during  the  year  1S5G,  made  entries  on  the  books  of 
"  Waldo  and  Clements,"  charging  large  sums  to  "Waldo  and 
Mitchell,"  according  to  the  course  of  dealing  of  1855.  These 
entries  were  seen  by  Mitchell  from  time  to  time,  and  although 
at  first  he  made  some  objections,  he  finally  acquiesced,  and 
allowed  the  dealing  and  entries  in  the  books  of  "  Waldo  and 
Clements"  to  stand,  and  be  continued  to  be  made  against 
"  Waldo  and  Mitchell,"  without  the  slightest  notice  taken  of 
*'  poor  Mr.  Parr !"  who  is  now,  by  dexterous  shuftliug,  to  be 


DECEMBER  TERM,  1860.  If5 


Henry  v.  Elliott. 


turned  up  as  the  partner  of  Waldo,  and  Clements  is  to  lose 
his  money,  on  the  suggestion,  tliat  the  charges  ought  to  liave 
been  entered  against  "Waldo  and  Parr"!!!  a  iirm  which 
never  figured  "in  book  or  bill,"  and  of  which  no  man  had 
ever  heard,  until  after  the  failure  of  AValdo,  wlicn  Mitchell 
attenii)ts  to  trump  up  Parr  as  the  partner  of  Waldo,  althou'di 
prior  to  that  event,  he  had,  himself,  been  content  to  hold  the 
honor. 

Per  Cukiam,  Exception  over-ruled. 


PEYTON  S.  HENRY,  Adm'r.,    agaiwd  WILLIAM  II.  ELLIOTT,  AdmW. 

Where  one,  who  had  only  a  life-estate  in  land,  made  a  deed  for  a  fee  simple, 
and  the  deed  contained  a  warranty  in  fee,  and  the  vendee,  knowing  of  the 
defect  in  the  title,  gave  his  notes  for  the  purchase-money,  upon  which 
judgments  were  obtained,  it  was  held  that  a  court  of  equity \vouId  not  in- 
terfere by  injunctive  process  to  restrain  the  collection  of  any  part  of  these 
judgments,  but  would  leave  the  vendee  to  his  action  on  the  warranty,  it 
appearing   that   the  warrantor  was  solvent. 

Cause  removed  from  the  Court  of  Equity  of  Bertie  county. 

Jordan  D.  Elliott,  the  defendant's  intestate  was  seized  of 
an  estate  by  the  curtesy  in  a  certain  tract  of  land,  the  re- 
mainder of  which  was  in  his  two  children,  Richard  II.  and 
Sarah  Elliott.  Jordan  D.  Elliott  being  so  seized,  made  a  deed 
to  Richard  R.  Ilcnry,  the  plaintiff's  intestate,  purporting  to 
convey  the  fee  simple  estate  in  the  land  in  question,  and  war- 
ranting the  title  for  himself,  his  heirs,  executors,  tfcc.  Rich- 
ard R.  Henry,  the  vendee,  at  the  same  time  gave  three  notes 
for  the  purchase-money,  amounting  to  five  hundred  and  fiftv 
dollars.  The  bill  admits  that  Richard  R.  Henry,  at  the  time 
of  the  purchase,  was  aware  of  the  fact,  that  the  vendor,  Elli- 
ott, had  (.idy  an  estate  by  the  curtesy  in  the  land  in  ques- 
tion, but  avers  that  said  Elliott,  at  the  time  of  the  sale,  pro- 


176  IN  THE  SUPEEME  COTJET. 

Henry  v.  Elliott. 

raised  to  procure  a  deed  for  the  remainder  from  his  children. 
This  allegation  was  denied  by  the  answer.  The  vendee,  Hen- 
ry, applied  to  the  childi-en  of  Jordan  D.  Elliott  to  convey 
him  the  title  to  the  remainder,  which  they  refused  to  do. 
After  such  refusal  to  convey,  the  defendant,  "William  H.  Elli- 
ott, as  administrator  of  Jordan  D.  Elliott,  who  had  died  in 
the  meantime,  presented  the  notes  in  question  and  demanded 
payment,  one  of  which  was  paid  by  Eichard  E.  Henry,  but 
he  refused  to  pay  the  others,  whereupon  suit  was  brought 
upon  them,  against  him,  and  rivived  after  his  death  against 
the  present  plaintiff,  and  judgment  obtained  in  the  Superior 
Court  of  Bertie  county,  and  execution  issued  thereon.  This 
bill  is  filed  against  William  H.  Elliott,  the  administrator 
of  Jordan  D.  Elliott,  and  seeks  to  obtain  an  injunction  to 
restrain  the  collection  of  the  judgment  on  these  two  notes,  on 
the  ground  of  a  part  failure  of  consideration. 

The  bill  admits  that  at  the  time  these  notes  were  given, 
Eichard  E.  Henry  relied  on  the  covenant  of  wari-anty,  in  the 
deed,  to  secure  him  from  loss.  And  there  was  no  allegation 
that  the  estate  of  Jordan  D.  Elliott  was  not  sufficient  to  pay 
all  damages  wliich  might  have  been  sustained  by  reason  of 
the  breach  of  the  covenant  of  warranty. 

Upon  the  coming  in  of  the  answer,  the  injunction,  which 
had  been  granted  in  this  cause,  was  continued  to  the  hearing, 
and  the  cause  being  set  down  for  hearing,  was  transferred  to 
this  Court  by  consent. 

Winston,  Jr.,  for  the  plaintiff. 
Gafrett,  for  the  defendant. 

Battle,  J.  The  plaintiff,  admitting  in  his  bill  that  his  in- 
testate, when  he  purchased  the  land  in  question,  knew  that 
the  defendant's  intestate  had  but  a  life-estate  as  tenant  by  the 
curtesy  in  it,  puts  his  claim  to  relief,  in  this  Court,  upon  the 
alleged  ground,  that  the  vendor  promised  to  procure  from  his 
two  children,  who  were  the  owners  of  the  remainder  in  fee 
in  the  land,  deeds  to  the  vendee  for  such  remainder.  This 
allegation  is  not  admitted  by  the  answers,  and  there  is  no 
proof  in  support  of  it,  so  that  the  defendant  contends  that  the 


DECEMBER  TERM,  1860.  ITT 


Henry  v.  Elliott. 


bill  must  be  dismissed  for  the  defect  in  the  proof  of  a  rnateri- 
al  allegation. 

But  the  plaintiflf  insists  tiiat,  as  there  was  a  partial  failure  of 
the  consideration,  he  cannot,  in  equity  and  good  conscience, 
be  required  to  pay  the  full  price  of  tlie  land.  Supposing  that 
there  was  no  objection  to  his  recovery,  because  of  the  vari- 
ance between  his  allegata  et  pvohata^  there  is  a  decisive-  ob- 
jection to  liis  claim,  it  is,  that  he  admits  that  Ivis  intestate, 
when  he  purchased  the  land,  relied  upon  the  vendor's  war- 
ranty as  a  security  for  the  amount  paid,  until  the  alleged  ver- 
bal agreement  of  the  vendor,  to  perfect  the  title,  should  be 
complied  with  ;  and  tliere  is  no  pretense  that  the  intestate's 
estate  is  not  full}'  sufficient  to  answer  all  the  damages,  which 
he  can  recover  in  an  action  on  the  covenant  of  warrant}'.  He 
had  then  a  full  remedy  at  law  ;  and  lie  has  it  still,  unless  by 
his  own  act  of  purchasing  the  outstanding  title,  he  lias  dej)riv- 
ed  himself  of  it.  The  cases  of  flauser  v.  Mann^  1  Mnrj)]i. 
411,  and  Richanhon  v.  Wllliains^?>  Jones' Eq.  116,  cited  and 
I'elied  ui)on  by  the  plaintiff's  counsel,  were  decided  mainly 
upon  the  ground,  that  the  defendants,  who  were  non-i'csidents 
of  this  State,  and  had  no  j)roperty  hero,  out  of  which  a  recov- 
ery, at  law,  could  be  made  effective,  ougi)t  to  be  enjoined,  in 
equity,  from  the  recovery  of  a  debt  oi-  damages,  which  could 
not  be  recovered  back,  at  law,  except  by  means  of  a  suit  in. 
another  State.  The  ])rinciple  of  such  cases  is,  that  our  court 
of  equity  will  give  redress  where,  otiierwise,  the  i>i^irty  seek- 
ing it,  would  be  driven  into  the  courts  of  another  State,  for 
the  purpose  of  obtaining  it.  The  other  case,  oi'  Jonrs  v.  I^d- 
wardfi,  4  Jones'  Eq.  257,  was  simply  an  oi'der  for  continuing 
an  injunction  until  the  hearing,  on  account  of  the  evasiveness 
of  the  defendant's  answer.  Neither  case  affords  any  supi)ort 
for  the  argun)ent,  that  the  court  of  equity  ought  to  interfere 
in  behalf  of  a  person,  who  has  a  plain  and  adequate  remedy, 
at  law,  in  anr  courts ;  particularly,  wlien  he  had  that  remedy 
in  contemplation,  and  relied  n\Hm  it,  when  he  entered  inta 
the  engagement,  out  of  which  the  controversy  arises. 

Pek  Cukiam,  Bill  dismissed  with  costs. 


CASES  IN  EQUITY, 

A1;,';ImJ)  and  D;j;.R.\iiXF,D 
1  >;  TiiK 

SUPREME  COURT  OF  NORTH  CAROLINA, 
AT  RALEIGH. 


JUNE  ITERM.  18G1. 


AMELIA  SMITH  agai7ist  LELAND   MARTIN  AND  ANOTHER.* 

"Where  i-\a\(  ^•  yvevc  cr 'iiveycd  to  a  femo  covert,  by  a  deecl  of  gift,  and  tlie  first 
clause  cf  tho  conveyance  pas?cd  the  legal  estate  toheiand  the  heirs  of  her 
body,  it  was  held  that  a  subsequent  clause  of  the  conveyaoc-e,  restraining 
her  hn-band  froia  all  control  over  said  slaves,  was  iiiconsislont  with  the 
first  clauco  and  inoperative,  and  that  the  i-lavcs  vested  in  the  husband  jMre 
mariii. 

Held  further,  liat  in  order  to  <  rcatc  a  separate  estate  in  a  ferae  covert,  there 
must  b;^  words  siuTii;icut  to  raise  a  trust  for  her  beaefit. 

Caust:  ixiii-'vcd  from  tlio  Court  of  Equity  of  "Wilkes  county. 

One  i^diert  Martin,  tlio  lather  of  the  plaintiff,  Amelia 
Smith,  \du>  is  a  married  woman,  suinic  by  her  next  friend, 
conveyed  to  her  a  female  slave,  by  the  followinc:  deed  : 

*This  case  -ia-  ilecided at  the  last  terra  of  tlie  Court  and  reported,  but  the 
Mss.  got  aecidcutally  misplaced,  and  was,  therefore,  omitted. 

1 


180  IJSr  THE  SUPREME  COURT. 

Smith  V.  Martin. 

"  State  of  jSTorth  Carolina,  Wilkes  county. 

"To  all  wliom  it  may  concern,  know  ye  that  for  and  in 
consideration  of  the  natural  love  and  affection,  and  for  other 
good  consideration,  hath  given  and  delivered  unto  my  daugh- 
ter, Amelia  Smith,  the  wife  of  Samuel  P.  Smith,  my  negro 
girl,  named  Dinah,  aged  about  twenty-one  years,  a  slave,  for 
life,  which  said  negro  girl,  Dinah,  I  bind  myself,  my  heirs, 
executors,  administrators,  to  wan-ant  and  defend  unto  the  said 
Amelia  Smith  and  the  lawful  heirs  of  her  body  forever,  which 
said  negro,  Dinah,  witli  her  increase,  if  any,  is  not  to  be  at 
the  disposal  of  Samuel  P.  Smith  in  no  manner  whatever,  but 
is  to  remain  the  inheritance  of  Amelia  M.  Smith  and  the  heirs 
of  her  body  forever.  In  witness  whereof,  I,  the  said  Robert 
Martin,  have  hereunto  set  my  hand  and  affixed  my  seal,  the 
13th  day  of  March,  A.  D.  1835. 

(Signed,)  R.  JMartix,  [scal.Y 

Test,  R.  C.  Martin. 

The  bill  states  that  the  defendant,  Leland  Martin,  with  full 
knowledge  of  the  above  recited  deed,  the  same  having  been 
duly  registered,  purchased  from  the  husband  of  the  plaintiff, 
a  certain  slave,  one  of  the  increase  of  Dinah,  the  slave  men- 
tioned in  the  deed  to  Mrs.  Smith,  and  holds  the  same  under 
color  of  a  deed  from  her  husband,  Samuel  P.  Smith,  and  the 
object  of  the  bill  is  to  have  the  defendant  declared  a  trustee 
for  the  plaintiff. 

The  answer  resists  the  recovery,  upon  the  ground,  that  by 
force  of  this  deed,  the  absolute  legal  estate  in  the  slave,  pass- 
ed to  Mrs.  Smith,  and  vested  in  her  husband  jure  maritl,  and, 
consequently,  the  conveyance  to  the  defendant  was  valid. 
The  cause  was  set  for  hearing  upon  bill,  answer  and  exlubits, 
and  was  transferred  to  this  Court  by  consent. 

Boyden,  for  the  plaintiff. 
Barher,  for  the  defendant. 

Maxly,  J.  The  equity  of  the  bill  depends  upon  the  con- 
struction of  the  deed  of  Robert  Martin,  dated  13th   March, 


JU:N"E  teem,  1861.  181 

Smith  V.  Martin. 

1835.  The  question  is,  whether  that  deed  creates  a  trust,  in 
equity,  for  the  sei)arate  use  of  the  wife.  After  an  attentive 
consideration  of  its  contents,  we  think  it  does  not. 

The  deed  conveys  to  the  feme  covert,  the  slave,  in  terms 
appro]")riate  to  a  common  law  conveyance  of  the  absolute  le- 
gal estate.  No  word  is  used  from  which  it  can  be  inferred, 
that  the  property  was  to  be  held  in  trust  for  her  ;  but,  on  the 
contrary,  it  is  signified  in*  the  strongest  and  most  direct  terras, 
that  she  was  to  have  the  legal  estate  and  the  legal  control. 
After  thus  disposing  of  it,  the  declaration  is  made  that  said 
property  is  not  to  be  at  the  disposal  of  her  husband,  in  any 
manner  whatever,  but  is  to  remain  the  inheritance  of  tliesaid 
feme  and  the  heirs  of  her  body  forever.  The  purpose  to  ex- 
clude the  husband  from  a  power  of  disposal  is  manifest,  but 
this  purpose  is  inconsistent  with  the  previously  expressed  pur- 
pose, equally  manifest,  tliat  she  should  have  the  absolute  le- 
gal estate.  As  the  husband's  responsibility  for  his  wife  and 
children  is  great,  the  law  invests  him  with  rights  in  the  wife's 
estate  to  aid  him  in  meeting  this  responsibilit}'.  and  the  courts 
will  not  divest  him  of  them  upon  light  grounds. 

It  seems  to  us,  a  constructive  trust  allowed  to  have  this 
effect,  ought  to  be  raised  only  in  case  some  word  is  used  to 
signify  an  intention  to  withdraw  the  property  from  the  wo- 
man's absolute  legal  control  and  to  establish  a  trust  for  her, 
to  the  exclusion  of  her  husband.  To  give  in  terms  appropri- 
ate and  explicit,  a  legal  estate  to  a  married  woman,  without 
such  word,  and  then  to  declare  her  husband  shall  not  have  the 
disposal  of  it,  is  to  express  inconsistent  ideas.  Which  of  thera 
was  paramount  in  the  mind  of  the  donor,  and,  consequently, 
what  was  his  intention,  we  do  not  certainly  know.  But  the 
obvious  inference,  from  the  language  used  is,  that  he  intend- 
ed his  daughter  should  have  the  absolute  legal  estate  and 
control  without  the  traraels  and  expense  of  a  trust ;  and  that 
his  son-in-law  should  not  disjiose  of  the  same  in  any  manner. 
The  one  is  as  manifest  as  the  other,  and  these  are  inconsistent 
intentions  which  cannot  stand  together.  In  respect  to  vjills^ 
that  arc  construed  with  more  leniency  than  deeds,  we  are  not 


182  IN  THE  SUPREME  COURT. 

Smith  V.  Martin. 

aware  of  any  case  in  -which  a  trust  lias  been  lield  to  exist, 
unless  words  are  used  indicating  a  purpose  to  make  a  trust. 
However  inartificial,  or  wanting  in  technicalities,  some  phrase 
was  used,  from  which  such  an  intention  was  gathered.  In 
the  cases  in  North  Carolina,  to  which  our  attention  has  been 
directed,  where  constructive  trusts  for  married  women  have 
been  the  subjects  of  consideration,  words  indicating  a  purpose 
to  raise  a  trust,  (such  as,  use,  benefit  or  trust)  have  been  uni- 
formly employed,  with  one  exception,  and  the  question  has 
not  been  as  to  the  existence  of  the  purpose,  but  as  to  its  efJect 
in  excluding  the  husband  from  participation  as  a  cedui  qui 
trust. 

The  exception  referred  to,  is  Ashecraft  v.  Little,  4  Dot.  Eq. 
236,  where  the  omission  of  sucli  words  as  mighi  indicate  a 
purpose  to  establibli  a  trust,  was  lost  sight  of  or  postponed  to 
another  defect,  that  was  fatal  to  the  equity  of  the  bill.  That 
case  did  not  turn  at  all  upon  the  point  that  is  now  before  us. 

In  the  case  of  Margetts  v.  Bar  ringer,  10  Eng.  C^on.  Chan. 
158,  which  is  relied  on  by  complainants  as  authority,  the 
words  are  "  to  the  sole  use^^  of  the  feme  covert,  which  distin- 
guishes it  from  the  case  before  us,  and  sh<»w,-i  an  intenti'tu  to 
create  a  trust  or  use  in  the  property,  vlistinct  from  the  legal 
estate. 

We  are  of  opinion,  therefore,  tliat  while  it  siifiicienlly  ap- 
pears, the  donor  of  the  slave  desired  t'>  exclude  the  husband 
from  any  right  of  property  in  the  same,  it  docb  not  snflicieni- 
ly  appear  that  he  desired  '»r  intended  (o  acconqdisli  ii  I)y  the 
only  mode  that  could  be  eiTectiial  \'ov  tliai  pui'pose. 

The  wife  took  an  absolute  legal  estate  in  the  slave,  Dinali, 
and  her  increase,  and  they  were  suljcct  io  the  malriinoiiial 
rights  of  the  husband. 

Pee  Cur.iAM,  i'ill  di-;rai.^scd  wilh  costs. 


JUNE  TERM,  1861.  183 


Floyd  V.  Gilliam. 


SAMUEL  FLOYD  .AND  OTn]-:RS  arjaimt  JOHX  B.  GILLIAM,  AdmW 
AND  ANOTHER. 

Wliei'o  a  bond  was  takcni  from  a  trustee  under  an  order  of  the  Court  of  Equi- 
ty, payable  lo  the  clerk  and  master,  conditioned  for  the  performance  of  the 
trust,  it  was  held  that  the  representative  of  the  cesUd  qui  trust  had  no  right 
to  sue  on  such  bond  without  the  leave  of  the  Court  of  Equity,  and  that 
where  such  imauthorised  suit  had  been  begun,  the  Court  would  enjoin  it 
until  an  account  of  the  trust  could  be  taken. 

Cause  removed  from  the  Court  of  Equity  of  Bertie  county. 

At  the  Fall  Term,  1851,  of  the  Court  of  Equity  for  Bertie, 
Samuel  Floyd  was  apjiointed  a  trustee  to  perforui  certain 
trusts  declared  by  the  said  Court  in  behalf  of  one  Charles  P. 
Skiles,  growing  out  of  a  deed  theretofore  made  between  said 
Skiles  and  James  Allen,  and  he  gave  bond  in  the  sum  of 
$-1000,  with  the  other  plaintiffs  in  this  cause  as  his  sureties, 
payable  to  the  clerk  and  master  in  equity  of  the  said  county, 
conditioned  taithfully  to  perform  the  said  trusts.  Skiles  died 
in  the  year  1851  ;  pp  to  which  time  the  trustee  had  acted  in 
the  said  trust,  hiring  out  negroes,  receiving  hires,  collecting 
and  disbursing  funds,  and  taking  care  of  the  person  of  Skiles, 
who  was  quite  inlirm.  The  defendant,  Gilliam,  having  been 
appointed  administrator  of  the  estate  of  Skiles,  without  any 
order  or  leave  from  the  Court  of  Equity  of  Bertie,  brought 
suit  on  the  said  bond,  and  it  was  to  enjoin  the  continuance  of 
this  suit  that  the  bill  in  this  case  is  filed.  The  plaintifl:  sub- 
mits, and  prays  that  an  account  of  the  trust  may  bo  taken  in 
this  Court,  and  avers  that  he  is  fully  able  to  pay  whatever  sum 
may  be  decreed  against  him,  and  he  insists  until  he  fails  to 
pay  and  satisfy  the  decree  of  the  Court,  the  defendants  may 
be  compelli'd  to  abstain  from  urging  the  suit  which  they  have 
instituted  in  the  Court  of  Law. 

There  is  in  the  answer  no  material  denial  of  the  facts  as 
above  stated,  but  the  defendants  say  that  Henry  Skiles,  a  son 
of  the  said  ccdui  qui  tiuat,  is  by  the  deed  set  out  in  the  plead- 


184  m  THE  SUPR]e]\IE  COUKT. 


Floyd  i\  Gilliam. 

ings,  interested  in  the  fund  therein  created,  and  insists  that  he 
should  have  been  made  a  party  to  this  suit. 
The  cause  M'as  heard  on  bill  and  answer. 

ISo  counsel  appeared  for  the  plaintiff  in  this  Court. 
W'i7isto?i,  <//'.,  for  the  defendant. 

Maxly,  J.  The  bond  of  the  trustee,  Floyd,  taken  by  the 
Court  of  Equity  for  Bertie,  was  a  paper  of  a  cause  in  that 
Court,  and  under  its  control.  It  was  taken  on  the  occasion  of 
Floyd's  appointment  to  the  trust  of  Skiles's  estate,  made  pay- 
able to  the  master,  and  conld  only  be  used  by  Skiles,  or  one 
claiming  through  him,  by  leave  of  the  Court.  The  instru- 
ment was  designed  by  the  Court  as  a  means  of  enabling  it  to 
enforce  the  execution  of  tlie  trust,  and  should  be  retained,  ac- 
cording to  usage,  as  a  security  for  any  sum  judicially  ascer- 
tained to  be  due  from  the  trustee  to  this  fund.  Hence,  it  was 
improper  for  the  master  to  allow  the  representative  of  Skiles. 
upon  his  own  motion,  to  take  control  of  the  bond,  as  of  a  bond 
payable  to  his  intestate,  and  sue  upon  the  same.  It  should 
have  been  retained  by  him  subject  to  the  purposes  intended, 
under  the  control  of  the  Court. 

We  are  of  opinion,  therefore,  upon  tiie  filing  of  the  bill  by 
the  trustee  for  an  account,  it  was  proper  to  suspend  the  prose- 
cution of  the  suit  at  law,  until  the  account  were  taken  ;  w-hen, 
if  a  balance  should  be  found  dne  to  the  administrator,  the 
action  on  the  bond  could  be  resorted  to  for  securing  its  pay- 
ment. 

We  do  not  impugn  the  general  principle  heretofore  adopt- 
ed by  our  courts,  of  not  staying  the  trial  at  law,  but  only  the 
executkni  after  judgment.  The  case  before  us  is  excepted 
from  the  operation  of  that  principle,  by  the  character  of  the 
suit,  and  the  instrument  sued  on.  The  bond  belongs  to  the 
office  of  the  Court  of  Equity,  andjs  under  the  control  of  the 
Court.  The  Court,  therefore,  has  the  power,  and  ought  to  have 
forbid  its  use  whenever  the  occasion  or  object  is  disapproved. 

The  bill  in  equity  is  so  manifestly  the  most  appropriate  and 


JUNE  TEEM,  1861.-  18^ 

Nooe  V.  Vannoy. 

adequate  means  of  having  a  settlement  of  a  trust  estate,  that 
we  think  the  Court  entirely  justified  in  declining  to  allow  the 
bond  and  an  action  upon  it  at  law,  to  be  used,  primarily,  for 
such  a  purpose.  The  bond  ought  to  have  been  regarded  only 
as  a  security  for  an  ascertained  balance.  This  view  steers 
clear  of  any  contlict  with  the  case  of  Williams  v.  Sadler,  4 
Jones'  Eq.  378,  which  has  been  called  to  our  attention.  Ours 
is  not  the  case  of  a  party  litigating  a  matter  both  at  Inw  and 
in  equity,  through  rights  of  proceeding  equally  open  to  him. 
The  action  at  law  is  upon  an  office  instrument  which  could 
not  be  properly  put  in  suit  without  leave,  and  for  wliich  leave 
ought  not  to  have  been  given  in  the  case  in  question. 

The  objection  to  the  bill  for  the  want  of  a  necessary  party 
defendant,  viz:  Henry  Skiles,  son  of  the  cediii  qui  trust,  we 
think  is  untenablei  He  is  sufficiently  represented  by  the  ad- 
ministrator Gilliam. 

The  equity  of  tlie  bill  for  an  account  is  unquestionable,  and 
an  account  should,  accordingly',  be  ordered.  In  the  mean 
time,  the  injunction  upon  the  suit  at  law  should  be  continued 
until  further  order. 

Pee  Cdkiam,  Decree  for  an  injunction  and  account. 


JOHN  NOOE  AND  ANOTHER  AdrrCrs  AND  OTHERS  against  JOHN  H. 
VANNOY  AND  OTHERS. 

The  general  rule  is,  that  where  a  testator,  after  making  his  will,  sells  the  property 
given,  the  legacy  is  adeemed.  But  where  the  proceeds  of  the  sale  of  proper- 
ty arc  given  to  children,  and  the  will  intimates  that  the  sale  is  to  be  made 
by  the  testator  himself  who  does  make  it,  and  no  substitution  or  equivalent 
is  made  for  such  legacy,  and  the  proceeds  are  reinvested,  and  are  traceable, 
it  was  held  not  to  be  a  case  of  the  ademption  of  the  Icgac}^  by  a  sale  of  the 
property. 


186  m  THE  SUPREME  COURT. 

Nooe  V.  Vaunoy 

Cause  removed  from  the  Court  of  Equity  of  Wilkes  county. 

The  plaintiffs  are  the  administrators  with  the  will  annexed 
of  Joel  Varinoy,  and  the  bill  is  liled  praying  the  advice  and 
protection  of  the  Court  as  to  the  proper  construction  of  the 
following  clause  of  the  said  will,  to  wit,  "  I  further  give  to 
my  cliildren,  by  a  former  marriage,  the  proceeds  of  the  sale 
of  my  tow.n  property  in  the  town  of  Wilkesboro',  or  so  much 
thereof  as  is  herein  specified,  to  wit,  to  my  son  Joel  Alfred, 
two  hundred  dollars,  to  Elizabeth  Caroline  Miller,  five  dollars, 
to  John  Hamilton,  one  hundred  dollars,  to  Rebecca  Elvira, 
formerly  married  to  Welsh,  one  hundred  dollars,  to  Emily 
Amanda  Welsh,  one  hundred  dollars,  to  Amelia  Adaline  Par- 
ker, two  hundred  dollars,  to  Anne  Maria  Swink,  two  hundred 
dollars,  all  which  legacies  are  to  be  chargeable  upon  my  town 
property  and  no  other." 

The  plaintiff,  Nooe,  married  S.  M.  Yannoy,  one  of  the  chil- 
dren by  the  second  marriage.  They  with  W.  W.  Vannoy  who 
is  also  a  son  of  the  second  marriage,  and  the  other  plaintiffs 
■who  are  the  children  of  that  marriage,setforth  in  their  bill,  that 
after  the  execution  of  the  said  will,  the  testator  made  a  deed  of 
the  town  property  therein  mentioned  to  the  said  John  Nooe  at 
the  price  of  $1,300,  for  which  he  received  the  cash,  hav- 
ing previously  contracted  to  sell  it  to  said  Nooe,  and  hav- 
ing taken  his  note  for  the  purchase  money,  which  he  then 
and  there  surrendered,  and  they  insist  that  by  such  sale,  the 
legacy  given  to  the  defendants,  who  are  the  children  of  the 
first  marriage,  was  thereby  adeemed  and  taken  away,  and 
that  the  fund  arising  from  such  sale,  not  being  disposed  of  by 
the  will,  became  distributable  among  the  next  of  kin  of  the 
said  Joel,  of  which  they  each  claim  a  share  M'ith  the  defend- 
ants, and  they  pray  that  the  administrators  may  be  directed 
to  pay  accordingly. 

The  defendants  insist  that  the  legacies  to  them  were  not 
adeemed  ;  that  it  was  the  intention  of  the  testator  to  sell  the 
land  himself  and  give  them  the  proceeds  of  it,  and  they  ad- 
vert to  the  fact  that  the  sale  is  not  directed  by  the  will  to  be 
made  by  his  executrix.     They  allege  that  soon  after  the  pay- 


JUNE  TEEM,  1861.  18T 


Nooe  V.  Vaouoy. 


ment  for  tlic  town  ]iroperty  was  made  to  him  on  od  October, 
1857,  instead  of  using  the  money  otherwise,  he  invested  the 
whole  or  greater  part  of  it  in  tlie  bonds  and  notes  of  other 
persons,  and  the}^  file  as  an  exhibit  the  inventory  made  by 
the  administrators,  from  which  it  appears  that  the  testator  left 
on  hand  a  note  on  John  Kooe  for  $200,  dated  25th  November, 
1857,  another  on  John  E.  Craner  for  $50,  dated  27th  October, 
1857,  ;ind  another  on  Wellborn  As  Rix  for  $100,  dated  14th 
October,  1857,  besides  judgments  to  the  amount  of  $100  on 
other  persons,  taken  subsequently,  but  which,  they  insist,  were 
on  notes  taken  siiortly  after  this  transaction,  and  they  insist 
that  by  these  and  other  concomitant  facts,  the^?r6>C(?cr75  of  the 
sale  of  the  town  property  can  be  distinctly  traced  and  identi- 
fied, and  that  by  a  fair  construction  of  the  said  provision  they 
are  entitled  to  the  legacies  aforesiad. 

The  cause  was  heard  on  the  bill,  answers  and  exhibits. 

Barhei\  for  the  plaintiff. 
Mitchell.,  for  the  defendant. 

Pearson,  C.  J.  AViicn  a  testator  sells  the  specific  property 
given  in  a  legacy,  such  legacy  is  adeemed,  lor  the  property 
docs  not  belong  to  him  at  the  time  of  his  death.  AVhen  the 
will  takes  effect,  thei-e  is  nothing  for  it  to  operate  on,  and,  of 
course,  the  legacy  must  fail.     Tliis  is  the  general  rule. 

But  it  is  unusual  for  a  father  to  adeem,  in  this  manner,  lega- 
cies given  to  cliildren  and  exclude  them  from  his  contempla- 
ted bouniy,  when  there  has  been  no  change  of  circumstances  ; 
and  for  tliis  reason,  the  Court  is  slow  to  adopt  the  conclusion 
that  there  is  an  ademption,  and  will  seek,  anxiously,  for  some 
mode  of  explanation. 

In  this  case,  the  testator,  after  making  provision  for  his  se- 
cond wife,  and  his  children  by  her,  gives  to  his  childi'en  by  a 
former  marriage  "  the  proceeds  of  the  sale  of  his  town  prop- 
erty, or  so  much  thereof,  as  is  herein  specified,''  viz  :  $2(J0  to 
Joel  Alfred,  &c.,  in  all  $905.  It  will  be  remarked  there  is  no 
power  given  to  his  executrix  to  sell  the  town  property,  but  he 


188  IN"  THE  SUPREME  COURT. 

Nooe  V.  Vfinnoy. 

gives  the  proceeds  of  the  sale  of  the  property  without  reference 
to  whether  the  sale  is  to  be  made  by  himself  or  by  his  execu- 
trix. So,  if  at  the  time  the  will  was  executed,  he  had  con- 
tracted to  sell  the  property,  or  had  in  contemplation  a  purpose 
to  make  sale  of  it  himself,  these  would  be  apt  Avords  to  give 
the  expected  "  proceeds  of  the  sale  " — supposing  the  will  to 
speak  as  of  the  time  of  its  execution.  But  this  will  being  ex- 
ecuted in  1856,  comes  within  the  operation  of  the  statute 
(act  of  1844,)  "Every  will  shall  be  construed  with  reference 
to  the  real  and  persotuil  estate  comprised  therein,  to  speak 
and  take  effect  as  if  it  had  been  executed  immediately  before 
the  death  of  the  testator,  unless  a  contrary  intention  shall  ap- 
pear by  the  will:"  Rev.  Code,  ch.  119,  sec  6. 

As  the 2^ ''oceeds  of  the  sale  of  the  property  is  given,  it  fol- 
lows that  if  such  a  part  thereof  as  is  specified,  can  be  traced 
out  and  identified,  at  the  time  of  the  death  of  the  testator,  the 
legacy  will  take  effect,  and  there  will  be  no  ademption,  or, 
only  a  partial  one.  The  distinction  between  a  gift  of  the 
propert}''  itself,  and  a  gift  of  the  vahie  of  the  property, 
or  the  proceeds  of  the  sale  of  property,  is  well  settled, 
P'uhford  V.  Hunter^  3  Bro.,  ch.  c.  410;  1  Roper  on  Leg- 
acies 246,  where  it  is  said  "  the  last  class  of  cases  to  be  no- 
ticed as  not  falling  within  the  general  rule  of  ademptions,  is 
where  the  terms  of  the  bequest  are  so  comprehensive  as  to  in- 
clude, within  their  compass,  the  fund  specifically  bequeathed, 
although  it  has  undergone  considerable  alteration."  He  il- 
lustrates the  exception  by  supposing  the  value  of  cei'tain  notes 
and  cash  in  the  hands  of  I>,  to  be  given  to  C,  and  afterwards 
the  testator  changes  the  notes  and  cash,  by  an  investment  in- 
to exchequer  bills,  bonds  or  mortgages,  which  arc  placed  in 
the  hands  of  B,  the  exchequer  bills,  bonds  or  mortgages  will 
pass,  because  thev  answer  the  specification  of  the  fund  in  the 
will. 

In  our  case,  comprehensive  words  of  description  are  used, 
and  at  the  date  of  the  deed  to  the  plaintiff'  Nooe,  "  the  pro- 
ceeds of  the  sale"  were  in  the  haiuls  of  the  testator  as  a  se- 
curity, for  which  he  held  the  note  of  the  said  Nooe,  the  tes- 


JUNE  TEEM,  1861.  189 

Nooe  V.  Vannoy. 

tator  at  tlie  same  time  received  the  proceeds  of  the  sale  in 
money,  and  if  he  afterwards  invested  it,  and  took  as  security 
tiie  notes  of  other  persons,  it  was  not  an  ademption,  because 
the  coTpui<^  or  thing  itself,  was  not  changed,  and  a  second  or 
third  collection  and  reinvestment  on  other  securities,  would 
not  change  it. 

It  was  suggested  on  the  argument,  that  the  concluding  words 
of  the  clause  of  the  will  under  consideration,  viz:  "  all  which 
legacies  are  to  be  chargeable  on  my  town  property  aforesaid, 
and  no  other,"  qualify  the  words  used  in  the  beginning  of  the 
clause,  and  make  the  several  sums  demonstrative  pecuniary 
legacies  charged  on  the  town  j^roperty,  and  no  other,  instead 
of  a  legacy  of  the  '•  proceeds  of  the  sale  "  or  so  much  thereof 
as  is  specified  in  tlie  several  sums  given. 

These  two  sets  of  words  do  show  a  confusion  of  ideas,  and 
create  difficulty  in  the  consti'uction,  but  we  are  satisfied  that 
there  is  a  (j'lft  of  the  proceeds  of  the  sale  of  the  property,  or 
the  parts  thereof  severally  specified.  We  are  led  to  this  con- 
clusion, because  such  is  the  first  and  prominent  expression, 
and  the  concluding  words  are  merelj^  incidental,  and  are  ad- 
ded, not  for  the  purpose  of  changing  the  gift,  but  to  prevent 
it  from  being  extended  to  any  other  part  of  the  testator's  es- 
tate. We  adopt  this  conclusion  tiie  more  readily,  because  it 
excludes  the  effect  of  an  ademption  of  a  legacy  to  chihlren^ 
which  is  unnatural,  unless  there  has  been  a  change  of  circum- 
stances, or  some  other  ])i'ovision  or  substitution  in  place  of  the 
bounty  which  M'as  originally  intended  for  them. 

An  examination  of  the  inventory  filed  by  the  plaintiffs, 
Kooe  and  A^annoy,  M'ho  are  the  administrators  de  bonis  non^ 
shows  that  these  notes  taken,  by  the  testator,  came  into  their 
hands;  one  for  Sg'^K)  dated  Xov.  2oth,  1857,  one  for  $50  da- 
ted 27th  Oct.  1857,  and  one  for  $100,  dated  the  14th  October, 
1857.  The  dates  and  other  circumstances  tend  to  show  that 
these  notes  were  taken  as  securities  for  parts  of  the  proceeds 
of  sale  received  by  the  testator  at  the  date  of  the  deed  to 
Nooe,  i.  c.  3d  Oct.  1857,  and  to  fix  their  identity.  AVhat  oth- 
er notes  were  on  hand,  at  the  death  of  the  testator,  and  went 


190  m  THE  SUPREME  COURT. 

Jones  V.  Geioclc. 

into  the  l)an(ls  of  the  cxocntrix,  does  not  a]»pear,  the  inveolo- 
ry  filed  by  her  )iot  being  ciniong  the  exliibirs. 

These  circumstances,  in  the  opinion  of  the  Coni-t,  lay  a  suf- 
licient  foundation  for  a  reference  to  the  master  to  em]  aire 
whether  the  proceeds  of  the  sale  of  the  town  property,  or  any 
part  thereof,  can  bo  traced  out  and  identified  ni  the  time  of 
the  death  of  the  testator.  In  aid  of  the  enquiry,  he  may  ex- 
amine the  plaintiffs.  Nooe  and  Yannoy,  on  oath,  and  require 
the  i)roduction  of  books  and  papers.  The  cause  will  stand  for 
further  directions. 

Plk  Cltjam,  Decree  accordingly. 


SALLTE  JONES  arjulnd  CHARLES  GEROCK  AND  OTHERS. 

The  personal  esta'e,  -whicl;  is  in  this  Sta;e  of  one  residing  i-?  anothei-  State, 
in  respect  to  both  debts  and  legacies,  must  be  administered  by  one  quali- 
fied ;o  ict  unde:  the  orders  and  control  of  our  cou"'s  and  according  to  our 
laws,  but  in  regard  to  tlie  payment  of  legacies  and  distributive  sljares,  our 
courts,  from  comity,  adopt  the  laws  of  the  domii-il. 

A  decree  for  a  distributive  share  in  another  State,  was  held  not  to  be  a  bar  to 
a  recovery  of  a  distributive  share  of  property  lying  in  this  State. 

The  widow  of  one  domiciled  in  another  State,  who  died  intestate,  seized  and 
possessed  of  lands  in  tliis  State,  is  entitled  to  her  dower  in  such  lands. 

Where  one,  residino:  in  another  State,  made  a  will,  which  was  not  satisPactory 
to  his  widow,  wlio  duly  entered  hei-  dissent  on  its  being  offered  for  pro- 
bate in  that  Sti>te,  and  also  entered  her  dissent,  when  it  was  offered  for 
probate  in  this  State,  it  was  held  that  she  is  cntiilcd  to  dower  anu  a  distri- 
butive share  of  property  lying  in  this  State. 

It  was  further  held^  that  a  decree  for  dower  in  another  State,  would  be  con- 
sidered as  .onfmed  to  the  lands  situate  in  such  other  State,  and  as  not  cm- 
bracing  lands  situated  in  this  Slate. 

Cause  removed  tVom  the  Court  of  Equity  of  Jones  county. 

The  bill  is  filed  by  the  widow  of  Edward  Starkey  Jones  of 
Alabama,  who  had  lands  and  personal  property  in  the  coun- 


JUNE  TERM,  1861.  191 


Jones  V.  Gerock. 


ties  of  Jones  and  Onslow,  in  tliis  State.  The  bill  sets  out  that 
the  decc'lent,  E.  S.  Jones,  nuulo  a  will  in  tlie  State  of  Alaba- 
ma, which  was  dnly  admitted  to  probate  in  Dallas  county,  in 
that  State,  but  from  which  she  dissented  at  the  time  of  its  be- 
ing ottered  for  probate  according  to  the  laM's  of  that  State.  Af. 
terwards,  the  said  will  was  duly  admitted  to  probate  in  the 
County  Court  of  Onslow,  in  this  State,  where  a  large  part  of 
his  personal  and  real  estate  was  situated,  and  at  that  term, 
she  also  dissented  from  the  will  of  her  said  husband.  The 
bill  is  filed  against  the  legatees  under  the  will  of  E.  S.  Jones, 
and  against  his  heirs  and  next  of  kin,  also  against  his  execu- 
tors and  against  the  representatives  of  liichard  Jones,  a  de- 
ceased son,  who  died  in  the  life-time  of  the  testator,  and  it 
prays  for  dower  in  the  lands  lying  in  this  StaTe,  an(l  also  for 
an  accouni  imd  a  distributive  share  of  the  personalty  in  this 
State. 

The  defendants  answered  severally,  but  did  not  deny  any 
of  the  allegations  of  fact,  stated  iu  the  bill.  Tliey,  however, 
objected  t"  the  plaintiff's  recovery  of  dower,  as  well  as  her 
share  of  the  })ersoualty,  because  the  act'-f  Ast-emlily,  Uevised 
Code,  chai".  118,  pcc.  1,  requires  that  slu'  must  "signify  her 
dissent  to  her  husband's  will  before  the  Cuunty  C->urt  of  the 
county  wlierci'i  she  resides,"  and  that  a.-;  she  did  not  reside  in 
auy  county  in  iNorih  Carolirui,  she  culd  in>t  make  sucJi  dis- 
sent ;it  :ill,  and,  therefore,  could  not  have  J\erdi>uer  ov  distri- 
butive sluire. 

The  defendants  also  objected,  and  thowcd  tliat  the  plain- 
tift'hadj'led  a  bill  f'>i",  and  obtained  n  decree  for  u  distribu- 
tive shaio  of  her  liusband",?  persunai  estate  ii'  die  Si.-itc;  of  Al- 
abama, and  that  she  is  baned  b}  ^:ucli  -'iciC'  •• -jr. i  setting 
np  claim  to  any  further  bhare  of  Jiis  ['crsonal  properly  In  this 
State. 

It  was  alpo  objected  by  tlie  defendants,  and  the  f;iei  was 
shown  to  this  Court,  that  the  plaintiil'  had  illed  a  bill  and  ob- 
tained a  decree  for  her  dower  in  her  JiUcbamlV  kiwU  in  the 
State  of  Alabama,  and  Jiad  had  the  same  laid  oil'  to  her,  and 


192  m  THE  SUPREME  COURT. 

Jones  V.  Gerock. 

they  allecred  such  decree  and  assignment  of  dower  in  bar  of 
her  application  in  this  Court. 

The  parties,  by  their  counsel,  tiled  a  written  agreement, 
that  all  errors  of  form  are  waived,  and  the  case  put  upon  its 
merits,  and  the  cause  was  sent  to  this  Court  by  consent. 

JImtghton,  for  the  plaintiff. 

McRae  and  J.  ^Y.  Bryan,  for  the  defendants. 

Peakson,  C,  J.  The  rules  of  pleading  and  the  orderly 
mode  of  proceeding  and  making  entries  in  a  cause,  are  in- 
tended, not  merely  for  the  convenience  of  tiie  parties,  so  that 
they  may  not  be  taken  by  surprise,  but  also  for  the  conven- 
ience of  the  Court,  so  as  to  prevent  confusion  and  tiie  embar- 
rassment, which  is  apt  to  occur,  whenever  the  regular  course 
of  things  is  departed  from.  In  this  case,  the  objection  to  the 
bill,  on  the  ground  of  its  being  multifarious,  and  because  it 
improperly  prays  for  a  division  of  the  slaves  and  other  speci- 
fic personal  property,  instead  of  an  account  and  settlement  of 
the  personal  estate,  and  the  difiiculties  growing  out  of  the 
vague  entries  in  the  transcript,  so  that  the  Court  cannot  see 
whether  the  case  is  set  for  hearing  on  bill  and  answers^ 
(taking  the  answers  to  be  admitted,)  or  on  bill,  answers,  rep- 
Ikation  and  exhibits,  and  is  left  to  inference  from  the  man- 
ner in  which  the  cause  was  treated  on  the  argument,  that  the 
latter  is  the  manner  in  which  it  was  intended  to  be  brought 
to  a  hearing,  may  all  be  met,  so  far  as  the  parties  to  this  cause 
are  concerned,  by  the  general  statement  that  "  all  errors  of 
form  are  waived,  and  the  case  is  to  be  put  upon  its  merits," 
but  still  this  does  not  answer  the  purpose  of  avoiding  the  dan- 
ger of  confusion,  and  of  relieving  the  Court  from  embarrass- 
ment in  deciding  a  case  where  the  claim  to  a  distributive 
share  of  the  personal  estate  and  a  claim  to  dower  out  of  the 
real  estate,  are  blended  together,  although  the  subjects  are 
governed  by  different  principles  of  law,  and  the  parties  are 
different.  We  think,  it  right  to  call  the  attention  of  the  gen- 
tlemen of  the  bar  to  this  matter,  so  that  it  may  not  be  drawn 


JUNE  TEEM,  1861.  193 


Jones  V.  Gerock. 


into  precedent  and  a  like  indulgence  be  again  asked  for.  In- 
deed, it  was  with  much  hesitation  that  we  concluded  to  pro- 
ceed with  this  case,  according  to  the  construction  we  put  on 
the  entries  made  in  "  the  transcript." 

1.  T\\Q personal  estate,  which  was  in  this  State  at  the  death 
of  the  testator,  both  in  respect  to  the  payment  of  debts,  and 
the  payment  of  legacies  and  distributive  shares,  must  be  ad- 
ministered by  e.xecutors  who  are  qualified  by,  and  act  under, 
the  orders  and  control  of  the  courts  of  this  State,  according  to 
the  law  of  this  State,  but  in  regard  to  the  payment  of  legacies 
and  distributive  shares,  from  comity,  our  courts  adopt  the  law 
of  the  (Joniicil,  which,  in  this  instance,  is  the  State  of  Alaba- 
ma. The  doctrine,  on  this  subject,  is  disposed  of  by  the  case 
of  Alvanei/  v.  Powell,  2  Jones'  Eq.  51,  and  the  discussion  is 
80  full,  as  not  to  call  for  any  further  elaboration  of  the  ques- 
tion. It  is  set  out  in  the  pleadings  and  admitted,  that  by  the 
law  of  that  State,  a  widow,  who  is  not  satisfactorily  provided 
for  by  the  will  of  her  husband,  may  enter  her  dissent,  and 
will,  thereupon,  be  entitled  to  a  distributive  share,  as  in  case 
of  intestac}^  and  the  plaintiff  has  duly  entered  her  dissent 
according  to  the  requirement  of  the  law,  consequently,  there 
can  be  no  reason  why  she  shall  not  receive  such  distributive 
share  of  the  personal  estate  in  this  State,  and  to  that  end, 
tliere  will  be  a  decree  for  an  account,  &c. 

It  is  alleged  by  the  answers,  that  the  plaintiff  has  obtained 
a  decree  for  her  distributive  share  in  the  State  of  Alabama, 
and  is,  therefore,  barred  of  any  further  claim  of  a  distribu- 
tive share  of  the  pro})erty  in  this  State,  as  she  has  already 
been  fully  satisfied.  But  we  do  not  understand  the  decree  in 
the  Couit  of  Alabama  as  embracing  any  of  the  ])crsonal  es- 
tate, other  than  that  which  was  in  that  State.  Indeed,  it  can- 
not be  supposed  to  embrace  the  personal  estate  in  tliis  State, 
for,  as  we  have  seen,  that  must  be  administered  under  the  or- 
ders and  by  the  authority  of  our  courts,  and  the  Court  in  Al- 
abama had  no  control  over,  or  concern  with  it.  So,  the  de- 
cree there,  in  respect  to  the  property  there,  is  not  a  bar  to  her 
right  to  have  a  like  decree  here,  in  respect  to  property  here. 


194  m  THE  supre:me  court. 


Jones  V.  G^twJk. 


2.  In  roppect  to  real  estate,  situate  in  this  State,  we  do  not, 
from  coniitj',  /l"])t  tlie  law  of  the  iloniicil,  l-at  :i|'[ily  our  own 
laws  as  to  tiie  njode  '^f  descent,  transfer,  dev(-luti(»n  and  all 
other  Marlicuhirs.  Jjy  the  common  law,  a  widow  was  enti- 
tled to  dower  in  all  the  lands  and  tonementsof  wliicli  her  hus- 
band was  seized,  rU  any  time  duvhifj  coverture^  of  ;in  estate  of 
inheritance  which  she  might,  I-3'  possibility,  have  issue  capa- 
ble of  inlici'iting.  iJ^'  the  act  of  17S4,  the  right  of  dower  was 
restricted  to  sucli  lands  and  tenements  as  the  husband  died 
seised  and  possessed  of.  There  can  be  "o  »piestictn  that  the 
widow  of  one  domiciled  in  another  State,  is  entitled  to  dower 
in  the  lands  and  tenements  situate  in  tliis  State,  of  which  he 
was  seijced  aiid  possessed  at  the  time  of  his  death. 

When  the  husband  leaves  a  last  will  and  testament,  there 
is  a  i>ro vision  in  the  act  of  ITS-i,  under  which  the  widow  may 
enter  her  dissent  and  claim  dower,  and  in  respect  to  tliis  pro- 
vision, the  argument  stands  tlius  : 

If  tho  statute  is  to  be  construed  literally^  ai'd  applies  only 
to  the  widows  of  persons  resident  in  tins  State,  bj-  f  »rce  of  the 
words,  "I'lay  signify  her  dissent  thx-reto  before  the  (,'ounty 
Court  of  tile  Counts  whctxin  i-he  resides,  in  opci\  court,  wlicn 
the  will  is  proj-ounded,  or  witliin  six  months  after  the  ])robate 
there* 'f,"  it  foUows,  as  the  provision  docs  not  a}>i>l.\  to  her 
case,  tb.nt  she  is  entitled  to  dower  mider  the  ger^oral  pi-ovi- 
sion,  without  a  dissoit,  in  all  the  land::'  aiid  tenemoitsof  >A']iich 
her  husband  \.-as  seized  and  possessed  at  the  time  of  lu's  (Lath  ; 
for  the  will  doe-s  not  tahe  effect  nn.til  after  his  tleath,  and  so 
lie  dies  seized  am!  jiossessed,  notwithstanding,  any  devise  or 
dispi.'bition  >\hich  he  nia_\  niakc  of  such  lands  ami  tenements 
by  hi    \/ill. 

If  the  st.itute  is  to  receive  a  Uhc/'at  eonstructio)',  (and  this, 
wc  Eupjiogi.',  is  the  true  one,)  so  as  to  make  it  \\\qvm  that  tho 
Vv'idow  is  to  pignify  her  <lissent  in  t!i.-  County  <  'onrt  where  the 
will  is  tfdiidtt-d  l() 2'rohnte,  f^X  the  lime  it  is  propnun  led,  or 
within  six  months  after  the  prol-.-Uc  thereof,  Mioi  it  applies  to 
tho  case  of  ii  non-rcsido)it  widow,  and  it  follows  that  in  our 
case,  the  widow  is  entitled  to  dower,  because  she  has  signilied 


JUNE  TERM,  1861.  195 


Sain  V.  Duliu. 


her  dissent  in  due  form  in  the  County  Court,  where  the  will 
was  admitted  to  probate,  upon  the  supposition  that  the  provi- 
sion in  question  applies  to  her.  So,  that  in  either  way,  the 
plaintiff  is  entitled  to  dower  according  to  the  prayer  of  the 
bill. 

If  the  plaintiff  had  not  entered  her  dissent  in  the  State  of 
Alabama,  but  had  taken,  under  the  will,  the  lands  devised  to 
her  in  tliat  State,  and  had  tlien  come  here  and  entered  her 
dissent  and  claimed  dower,  we  are  inclined  to  the  opinion 
that  she  would  not  have  been  entitled  to  it,  because,  having 
taken  under  the  will,  she  would  not  be  allowed  to  take  against 
the  will  here,  according  to  the  doctrine  established  hy  Men- 
detihall  v.  MendenhalL  8  Jones'  Rep.  287.  But  as  she  dissent- 
ed tliere,  and  has  also  dissented  here,  and  claims  against 
the  will  in  both  States,  her  acts  harmonise,  and  her  right  seems 
to  be  a  very  clear  one. 

In  regard  to  the  decree  which  it  is  alleged  she  has  obtained 
for  her, dower  in  Alabama,  and  which  the  answer  seeks  to  set 
up  in  bai-  to  her  dower  in  the  lands  situate  here,  we  must  con- 
sider it  as  confined  to  the  lands  situate  in  Alal)ama,  and  that 
the  lands  in  this  State  were  not  taken  into  consideration,  so  it 
cannot  amount  to  a  satisfaction,  and  is  not  a  bar  to  the  right 
she  now  ^eks  to  assert. 

There  will  be  a  decree  for  the  plaintiff',  declaring  her  enti- 
tled to  dower,  and  also  to  an  account,  and  distributive  sliare 
of  the  personal  estate. 

Pee  Cukiam,  Decree  accordingly. 


BASIL  SAIN  agaimi  WILLIAM  M.  DLTvIN. 

Where  the  answer  to  a  bill  for  a  specific  performance  of  a  parol  contract  to 
oonvov  land,  and  in  ihc  alternative  for  compensation  for  improremcnt.s,  de- 
nies tJie  terma  of  the  contract  as  set  out  in  the  bill,  and  allepes  a  different 

o 


196  IN  THE  SUPEEME  COURT. 

Sain  V.  Dulin. 

one,  which  was  not  performed  on  account  of  the  improper  conduct  of  the 
plaintiff",  and  the  defendant  also  insists  on  the  statute  of  frauds,  it  was  held 
that  the  plaintiff  was  not  entitled  to  compensation  for  value  added  to  the 
land  by  such  improvements. 

Cause  reraovcd  from  the  Court  of  Equity  of  Davie  country. 

The  plaintiff  alleged  that  the  defendant  had  agreed  by  pa- 
rol to  sell  to  him  a  certain  piece  or  parcel  of  land  lying  in  the 
said  county  of  Davie,  on  Dutchman  creek,  at  the  ])rice  of 
$7.50  per  acre,  which  land  is  described  in  plaintift''s  bill,  and 
he  alleges  that  after  some  disagreement  as  to  one  of  the  lines, 
they  agreed  finally  as  to  the  limits  of  the  tract,  and  plaintiff 
went  into  possession  and  kept  it  for  a  year;  that  during 
that  time,  he  built  a  house  on  the  premises  worth  $125,  and 
cleared  and  otherwise  materially  added  to  the  value  of  the 
land  by  making  other  improvements  on  it;  that  he  held  a  note 
on  the  defendant  for  over  $300,  which  it  was  agreed  should 
be  taken  up  by  the  defendant  as  a  part  of  the  price  of  the 
land ;  that  plaintiff  has  always  been  ready  and  willing  to 
make  payment  of  the  remainder  of  the  purchase-money,  and 
has  offered  to  do  so,  but  that  the  defendant  without  any  plau- 
sible excuse  for  such  breach  of  faith,  has  sold  and  conveyed 
the  said  land  to  another.  The  prayer  is  for  a  specific  perform- 
ance of  the  agreement.  "  Or  if  that  agreement  is  not  in  law 
valid,  and  cannot  be  executed,"  he  prays  that  the  defendant 
be  decreed  to  account  with  him  for  the  value  of  the  improve- 
ments added  to  the  land,  and  for  general  relief. 

The  answer  of  the  defendant  sets  out  that  he  did  make  a 
contract  M'ith  the  plaintiff  for  a  parcel  of  land  at  $7.50  per 
acre,  according  to  particular  boundaries  agreed  on  between 
them,  and  he  avers  that  he  has  been  always  willing  to  com- 
ply with  the  agreement,  but  that  the  defendant  after  such 
agreement  was  entered  into,  insisted  upon  a  boundary  alto- 
gether different  from  that  agreed  on,  and  became  offended 
with  defendant,  and  refused  to  speak  to  him  for  some  time, 
and  acted  in  such  a  manner  as  to  induce  him  to  believe  that 
he  would  not  accept  a  deed  on  the  real  terms  of  the  contract ; 
that  the  defendant  did  not  offer  to  give  him  np  the  said  $300 


JUNE  TERM,  1861.  19T 

Sain  V.  Duliu. 

note,  nor  to  pay  the  remainder  of  the  purchase-money,  and 
he  admits  that  he  has  sold  the  land  to  one  Gaither. 

The  defendant  insists  on  the  statute  of  frauds  in  bar  of 
plaintiff's  claim  to  relief.  The  cause  was  set  down  for  hear- 
ing; on  bill,  answer  and  proofs  taken  in  the  cause,  and  sent  to 
this  Court  by  consent. 

Clement^  for  tlie  plaintiff. 

No  counsel  appeared  for  the  defendant  in  this  Court. 

Batile,  J.  The  object  of  tlie  bill  is  to  obtain  compensa- 
tiou  for  improvements  which  the  plaintiff  alleges  that  he  made 
upon  a  certain  parcel  of  land,  which  the  defendant  had  agreed 
by  parol  to  convoy  to  him.  A  pra^^cr  for  specific  perform- 
ance is,  indeed  contained  in  the  bill,  but  the  plaintiff  antici- 
pating that  such  relief  could  not  be  had,  relies  altogether  up- 
on the  secondary  equity  for  which  he  sets  up  a  claim.  Were 
the  contract  which  he  states  admitted  by  the  defendant,  but 
repudiated  because  of  its  being  by  parol,  his  claim  for  com- 
pensation on  account  of  the  value  which  he  added  to  the  land 
by  his  improvements,  would  be  clear,  as  has  been  long  since 
settled  by  the  leading  case  of  Alhea  v.  Griffin,  2  Dev.  and 
Bat.  Eq.  9.  But  the  answer  denies  the  contract,  as  set  out  in 
the  bill,  and  alleges  one  which  he  avers  he  was  willing  to 
have  executed,  had  he  not  been  prevented  from  doing  so  by 
the  misconduct  of  the  plaintiff  himself.  Under  these  circum- 
stances, the  case  of  Dunn  v,  Moore,  3  Ircd.  Eq.  364,  is  a  di- 
rect authority  against  the  claim  of  the  plaintiff'  to  any  relief 
at  all.  In  that  case,  it  was  decided  that  part  performance,  as 
by  paying  part  of  tlie  purchase-money,  and  entering  into  pos- 
session and  making  improvements,  will  not  take  the  case  out 
of  the  statute ;  but  when  there  is  such  part  performance,  if 
the  defendant  admit  the  contract  as  stated  by  the  plaintiff, 
and  also  the  part  performance,  but  relies  on  the  statute  of 
frauds,  the  Court  will  order  an  account,  and  decree  a  com- 
pensation to  tlie  plaintiff"  for  his  payments,  and  for  the  value 
which  his  expenditures  have  added  to  the  land :  but  if  the 


198  IN  THE  SUPEEME  COUET. 

Sain  V.  Dulin. 

contract  be  denied,  the  Court  cannot  grant  any  relief,  because 
it  cannot  go  into  proof  of  a  contract  variant  from  that  which 
is  stated  in  the  answer.  The  principle  thus  stated  we  approve, 
and  it  is  decisive  of  the  present,  case  against  the  plaintiff. 

Our  attention  has  been  called  to  the  cases  of  Thomas  v. 
Kyles,  2  Jones'  Eq.  302,  and  Love  v.  NeiUon^  Ibid  339,  deci- 
ded at  the  Morganton  term,  1854,  which  are  supposed  to  be 
in  opposition  to  the  principle  extracted  from  Dunn  v.  Moore. 
The  first  would  seem  to  be  so,  but  the  part  of  the  case  which 
relates  to  the  present  question,  was  comparatively  an  unim- 
portant one  in  the  cause,  and  was  manifestly  not  much  con- 
sidered, either  by  the  counsel  or  the  Court.  Besides,  it  does 
not  appear  from  the  report,  that  the  alleged  contract  of  pur- 
chase for  the  five  acres  of  land  was  denied  in  the  answer,  it 
being  only  stated  that  "  it  was  not  admitted,"  which,  as  the 
main  dispute  was  upon  another  point,  may  have  meant  that 
the  answer  had  not  noticed  the  allegation  of  the  contract. — 
However,  this  may  be,  we  cannot  give  the  case  the  effect  of 
over-ruling,  or  essentially  modif}ang  that  of  Dunn  v.  Moore. 
The  other  case  of  Love  v.  Neilson.,  came  before  the  Court  up- 
on the  plea  of  the  statute  of  frauds  in  bar  of  the  plaintift^'s 
claim  for  the  specific  performance  of  a  parol  contract  for  the 
purchase  of  one  half  of  a  mill.  The  plea  was  sustained,,  but 
the  Court  said  that  the  plaintiff"  might  have  relief  for  his  ex- 
penditures in  improving  the  mill-site  of  the  defendant,  and  to 
that  end,  remanded  the  cause  to  the  Court  below  in  order  that 
the  defendant  might  there  file  his  answer.  As  it  could  not  be 
known,  whether  the  answer  would  admit  or  deny  the  contract 
set  forth  by  the  plaintiff,  it  was  manifest  that  the  decision  of 
the  Court  is  not  necessarily  opposed  to  the  principle  adjudica- 
ted in  Dunn  v.  Moore. 

Per  Cukiam,  Bill  dismissed  with  costs. 


JUNE  TERM,  1861.  199 


Martin  v.  Cook. 


JAMES  O.  MARTIN  against  C.  L.  COOK  AND  OTHERS. 

A  bill,  which  seeks  to  rescind  a  contract  in  part,  without  restoring  the  oppo- 
site party  to  the  condition  he  occupied  previously  to  plaintiff's  connection 
tion  with  him,  is  radically  defective. 

An  injunction,  except  in  cases  of  waste  and  irreparable  injury,  is  used  as  an 
auxiliary  only  to  some  primary  equity. 

Cause  removed  from  the  Court  of  Equity  of  Wilkes  county. 

The  plaintiff,  in  his  bill,  alleges  that  the  defendant,  Oba- 
diah  Sprinkle,  was  indebted  to  Jenkins  &  Roberts,  in  a  bond, 
for  $1963,  dated  16th  March,  1854,  and  on  the  2Tth  of  March, 
1855,  they  took  from  said  Sprinkle  a  deed  of  trust  (executed 
to  defendant  Cook)  to  secure  the  same,  conveying  to  said 
Cook  two  tracts  of  land,  (describing  them,)  also  100  head  of 
hogs,  Blacksmith's  tools,  two  stills  and  other  personal  proper- 
ty ;  that  on  the  18th  of  January,  1858,  in  order  to  oblige 
Sprinkle,  who  was  his  neighbor,  the  plaintiff  gave  Jenkins  & 
Roberts  his  own  bond  for  $1500,  and  took  an  assignment  of 
the  bond  from  Sprinkle  without  recourse  to  them,  also  an 
assignment]of  the  deed  of  trust,  likewise  without  recourse  ;  that 
said  deed  of  trust  was  fraudulent  and  void,  in  law,  being  in- 
tended to  enable  the  said  Sprinkle  to  hinder  and  delay  his 
creditors ;  that  after  making  the  said  deed  of  trust,  judgments 
were  taken  in  the  County  Court  of  Mecklenburg  and  execu- 
tions issued,  under  which  the  said  land  was  sold,  and  that  the 
personal  property  conveyed  in  said  deed,  he  has  never  been 
able  to  find. 

The  bill  further  alleges  that  suit  has  been  brought  on  the 
bond  which  he  gave  Jenkins  &  Roberts,  and  judgment  taken 
in  the  County  Court  of  Davidson,  on  which  execution  has 
issued,  and  he  is  threatened  with  a  sale  of  his  property  to  sat- 
isfy the  same. 

The  bill  prays  for  an  injunction  to  restrain  the  defendants 
from  proceeding  to  collect  the  said  execution. 

The  defendants  demurred  to  the  bill.  There  was  a  joinder 
in  demurrer,  and  the  cause  being  set  down  for  argument,  was 
sent  to  this  Court 


200  IN  THE  SUPKEME  OOUET. 

Mims  V.  McLean 

JBayden,  for  the  plaintiff. 
Barher,  for  the  defendants. 

Manly,  J.  The  plaintifi^'s  equity  for  the  relief  he  asks,  de- 
pends upon  his  willingness  to  rescind  the  contract  of  whiclj 
he  complains,  in  toto,  and  restore  the  parties  to  the  condition 
they  occupied  previous  to  th6ir  connection  with  him.  This 
he  does  not  proffer  to  do,  and  in  this  respect,  the  frame  of 
the  bill  is  radically  defective. 

The  injunction,  (except  in  cases  of  waste  and  irreparable' 
injury,)  is  used  as  an  auxiliary,  only,  to  some  primary  equity. 
This  primary  equity  ought  to  be  set  forth  and  insisted  upon  as 
the  ground  of  the  Court's  jurisdiction.  The  error  in  the  bill  is 
one  into  which  it  seems  the  profession,  in  this  State,  is  prone 
to  fall.  Their  attention  has  been  called  to  it  recently  in  sev- 
eral cases;  Ehorn  v.  ^Valdo,  6  Jones'  Eq.  Ill;  MoRae  v. 
Eailroad  Co.,  5  Jones'  Eq.  895 ;  Scofieldy.  Van  BoMelin, 
Ibid.  342  ;  Patterson  v.  Miller,  4  Jones'  Eq.  431. 

Per  Cdkiam,       The  demurrer  should  be  sustained  and  the 
bill  dismissed. 


THOMAS  J.  MIMS  against  DANIEL  W.  McLEAN,  Adni'r  of 
JAMES  KELLY. 

lu  the  case  of  a  common  injunction,  where  the  answer  is  full,  and  the  plain- 
tifT  fails  to  prove  his  allegations  by  any  admission  in  the  answer,  being 
without  proof,  his  injunction  must  be  dissolved. 

ArPKAL  from  a  decretal  order  made  in  the  Court  of  Equity 
of  Cumberland. 

The  plaintifi'  alleges  in  his  bill  that  on  the  first  of  IN'ovem- 
ber,  1851,  he  executed  to  defendant's  intestate,  James  Kelly, 
a  bond  for  $500,  payable  one  day  after  date ;  that  he  did  not 
owe  Kelly  that  sum  of  money,  but  that  the  latter  had  become 


JUNE  TEEM,  1861.  201 

Mims  V.  McLean 

his  security  for  tlie  purchase  of  a  tract  of  land,  and  that  this 
bond  was  given  to  cover  the  contingency  of  his  having  to  pay 
for  tiie  land ;  that  a  few  days  afterwards,  he  executed  a  deed 
of  trust  to  secure  the  payment  of  the  bond,  and  had  the  same 
duly  registered ;  that  not  long  afterwards,  plaintiff  and  the 
said  Kelly  had  a  settlement  in  which  it  was  agreed  that  he, 
Kelly,  should  keep  the  land  and  pay  the  amount  for  which  he 
was  liable  as  surety,  and  that  he  should  give  up  or  cancel  the 
bond  for  $500 ;  that  accordingly  the  bond  in  question  was 
.given  up  to  the  plaintifl';  that  being  the  son-in-law  of  the  in- 
testate, Kelly,  by  invitation  from  him,  he  removed  with  his 
family  to  his  house,  and  remained  there  for  about  a  3'ear,  and 
then  removed  to  another  place ;  that  the  furniture  which  he 
carried  witli  him  to  Kelly's  house,  remained  there  after  ho 
and  his  family  left,  and  that  the  bond  for  $500  was  also  left 
there- in  an  old  pine  desk  with  other  papers  of  the  plaintiff; 
that  Kelly  has  since  died,  and  the  defendant  having  been  ap- 
pointed administrator  of  his  estate,  has  brought  suit  against 
him  at  law,  and  having  obtained  a  judgment  tlicreon,  has  ta- 
ken out  execution,  and  threatens  to  sell  the  plaintiff's  proper- 
ty. The  prayer  is  for  an  injunction,  and  for  a  surrender  of 
the  bond,  or  a  release  from  the  judgment  at  law,  and  for  gen- 
eral relief. 

The  defendant  in  his  answer  says  that  among  the  valuable 
papers  belonging  to  the  estate  of  his  intestate,  he  found  the 
bond  of  $500  which  he  urged  defendant  to  pay,  but  which  he 
abruptly  refused  to  do ;  simply  denying  that  ho  owed  Kelly 
any  thing,  without  in  any  manner  ex{)laining  or  accounting 
for  the  existence  of  the  bond  ;  that  he,  found  the  said  bond 
carefully  placed  away  in  a  trunk  wrapped  up  in  a  bundle  of 
other  papers,  among  which  was  a  note  on  other  persons  for 
81000 ;  that  he  found  in  an  old  cheese-box  a  large  bundle  of 
papers  which  he  did  not  consider  valuable,  but  he  did  not  find 
any  of  the  plaintiff's  papers,  either  there  or  elsewhere  about 
the  intestate's  residence,  and  he  has  no  recollection  of  ever 
having  seen  about  the  house,  or  elsewhere,  the  pine  desk  de- 
scribed in  plaintiff's  bill.     The  defendant  does  not  profess  to 


202  m  THE  SUPEEME  COUET. 

Mims  V.  McLean. 

know,  of  his  own  knowledge,  any  thing  of  the  dealings  be- 
tween the  plaintiff  and  his  intestate,  but  from  the  foregoing 
circumstancss,  and  from  what  he  has  heard  from  liis  intestate, 
he  feels  justified  in  denying  the  plaintift^'s  allegations,  and 
holds  him  to  strict  proof. 

Upon  the  coming  in  of  the  answer,  the  Court  ordered  the 
injunction  to  be  dissolved,  from  which  plaintiff  prayed  an 
appeal  to  this  Court. 

W.  MgL.  McKay,  for  the  plaintiff. 
Leitch,  for  the  defendant. 

Pearsoist,  C.  J.  The  equity  of  the  plaintiff  is  put  on  the 
ground  that  the  note  in  question  was  satisfied  in  the  life-time 
of  Kelly,  the  intestate  of  the  defendant ;  that  on  a  settlement 
between  the  plaintiff  and  Kelly,  the  note  was  surrendered  up 
to  the  plaintiff,  and  that  he  neglected  to  cancel  or  destroy  it, 
and  left  it  among  his  other  papers  at  the  house  of  Kelly,  (who 
was  his  father-in-law,)  "  in  an  old  pine  desk." 

The  defendant  does  not  confess  the  equity  of  the  bill,  but 
denies  all  of  the  facts  upon  which  it  rests ;  and  says  that  ac- 
cording to  his  belief,  they  are  not  true,  and  as  the  ground  of 
this  belief,  among  other  things,  he  avers  that  the  note  was 
found  by  him,  at  the  death  of  the  intestate,  carefully  wrapped 
up  with  other  valuable  papers,  and  placed  away  in  a  trunk, 
and  that  there  were  no  papers  pf  the  plaintiff'  found  at  the 
house  of  the  intestate,  and  no  "  old  pine  desk  "  like  the  one  de- 
scribed in  the  bill.  So,  if  the  note  ever  had  been  surrender- 
ed to  the  plaintiff,  his  intestate  must  have  purloined  it  and 
put  it  among  liis  valuable  papers,  which  the  defendant  does 
not  believe  to  be  true,  and,  in  confirmation  of  his  belief,  he 
avers  that  after  the  death  of  his  intestate,  he  urged  complain- 
ant to  pay  the  note,  "  which  he  abruptly  refused  to  do,  simp- 
ly denying  that  he  owed  Kelly  any  thing,  without  in  any 
manner  explaining  or  accounting  for  the  existence  of  the  note." 

The  answer  being  full,  and  the  plaintiff  having  failed  to 
prove  his  allegations  by  any  admission   in  the  answer  he  is 


jtj:n'e  tei^m,  isei.  203 
— , ^ — — ____ 

Jones  V.  McKenzie. 

without  proof,   and   his   injunction   is   gone.      Oapehart  v. 
Mhoon,  Bnsb.  Eq.  37. 

Tliere  is  no  error  in   the  decretal  oi'der  dissolving  the  in- 
junction.    This  will  be  certified. 

Per  Cukiam,  Decretal  order  affirmed. 


NEHEMIAH  JONES   AND   OTHERS    nf/aimt   ROBERT   McKENZIE 
AND  ALBERT  PEACOCK. 

Id  the  case  of  a  coranioii  injunction,  where  the  answer  is  full  and  responsive 
to  the  bill,  and  the  equity  is  not  confessed,  but  denied  the  injunction  must 
be  dissolved. 

Tins  was  an  appeal  from  a  decretal  order  of  the  Court  of 
Equit}'-  of  Robeson  County. 

The  bill  was  filed  by  Nehemiah  Jones,  Arthur  Jones  and 
Isham  P.  Watters,  to  restrain,  by  injunction,  the  collection  of 
a  judgment,  obtained,  against  tliem.  It  alleged  that  the  said 
judgment  was  founded  on  a  sealed  note  given  by  Nehemiah 
and  Arthur  Jones,  as  principals,  and  Watters  as  their  snret}'  ; 
that  the  said  note  was  for  §500,  and  was  given  in  pursuance 
of  a  contract,  \vhich  they  made  with  the  defendants  in  Octo- 
ber, 1859,  to  the  effect,  that  the  said  defendants  were  to  de- 
liver to  plaintiffs,  the  Messrs.  Jones,  in  as  good  condition  as 
it  was  at  the  time  of  the  contract,  a  turpentine  distillery,  on 
the  1st  of  the  ensuing  Januarj^,  which  they  were  to  have  and 
use  for  one  year  thereafter,  to  wit,  for 'the  year  1860,  at  the 
said  price  of  $500;  that  previously  to  the  1st  of  January, 
1860,  and  wliile  the  said  distillery  was  yet  in  the  possession 
of  the  defendants,  it  was  burned  and  destroyed,  with  all  its 
furniture  and  fixtures,  as  far  as  it  could  be  burned,  and  that 
what  could  not  be  burned  was  rendered  worthless  and  useless 
for  the  purposes  contemplated  in  the  contract,  thus  rendering 


204  IN  THE  SUPREME  COURT. 

1 — -. 

Jones  V.  AIcKenzie. 

it  impossible  to  fulfill  the  contract  of  defendauts,  without  re- 
builditis:  a  dislillciy  in  said  place,  which  was  not  done;  nei- 
ther was  an_y  attempt  made  to  deliver  the  said  distiller}'-,  and 
it  could  not  be  delivered,  and  was  not ;  and  that  during  the 
year  1S60,  the  defendants  had  made  attempts  to  sell  the  re?n- 
nants  of  the  said  distillery.  Robert  McKenzie,  one  of  the 
defendants,  answei-ed,  that  he  was,  at  the  time  of  making  the 
alleged  contract,  interested  in  the  distillery,  mentioned  in  the 
pi intitfs' bill,  jointly  with  the  other  defendant,  Albert  Pea- 
cock, but  that  now  he  is  the  sole  proprietor  thereof,  and  solely 
interested  in  the  debt  sought  to  be  enjoined.  He  states  that 
he  made  the  contract  with  the  Messrs.  Jones  for  himself  and 
his  copartner,  and  it  is  not  true,  as  stated,  that  the  distillery 
was  to  be  delivered  on  the  1st  day  of  January  in  as  good  con- 
dition as  it  was  when  the  contract  was  made  ;  that  no  partic- 
ular time  was  specified  for  the  delivery  of  the  premises  ;  tliat 
defendant  finished  using  the  distillery  on  Ittth  of  December, 

1859,  and  a  few  days  before  that,  gave  notice  to  the  plain- 
tiff's tliat  he  should  cease  to  use  the  premises  on  that  day ; 
and  that  he  wished  them  to  take  charge  of  the  establishment, 
as  he  was  about  to  leave  the  State  on  a  temporary  journey, 
and  that  there  was  no  obstacle  to  their  getting  possession  of 
it  immediately  ;  that  it  is  true,  that  before  the  1st  of  January, 

1860,  the  distillery  did  take  fire  and  a  partial  burning 
took  place,  and  some  injurj^  was  done  to  it  and  some  of  the 
fixtures  were  burned,  but  the  defendant  positively  denies  that 
it  was  rendered  useless  and  worthless  and  incapable  of  deliv- 
ery as  charged  in  the  bill ;  on  the  contrary,  he  avers  that  very 
little  injury  was  done  to  the  still,  except  to  the  cap,  and  that 
the  fixtures  around  it,  which  were  burned,  could  be  replaced 
without  much  trouble  x)t  expense.  Pie  denies  that  he  tried 
to  sell  the  distillery,  but  says  he  refused  to  do  so,  because  of 
his  contract  with  the  plaintiifs.  He  says,  that  for  the  benefit 
of  the  plaintiff's,  he  authorised  an  agent,  soon  after  the  burn- 
ing aforesaid,  to  put  the  distillery  and  fixtures  in  as  good  con^ 
dition  as  they  were  before  tlie  burning,  at  the  cost  and  ex- 
pense of  the  defendants,  and  he  is  advised  and  believes  that 


JUIS^E  TERM,  1861.  205 

. — . ...       — - — . — — — « — 

Jones  V.  McKenzie. 

his  said  agent  was  not  allowed  to  do  so  by  the  plaintiffs,  and 
so  he  avers. 

On  the  coming  in  of  the  answer,  the  defendants  moved  for 
a  dissolution  of  the  injunction,  which  was  refused  by  his 
Honor,  and  an  oi'dcr  was  made  to  continue  it  to  the  hearing, 
fi-oni  wliich  the  defendants  aj)pealed. 

No  counsel  appeared  for  the  plaintiffs  in  this  Court. 
Zcitch,  for  the  defendants. 

Pearson,  C.  J.  In  October,  1859,  the  plaintiffs  made  a 
contract  with  the  defendants  to  rent  a  turpentine  distillery  for 
one  year,  to  commence  on  the  1st  day  of  January,  1800,  for 
which  they  agreed  to  pay  $500,  and  to  secure  the  payment 
thereof,  executed  a  note,  under  seal,  payable  nine  montlis 
tliereafter.  In  December,  1859,  a  fire  occurred,  by  which 
the  distillery  was  damaged  to  some  extent.  The  plaintiffs 
did  not  enter  and  take  possession  of  the  distillery,  and  it  was 
not  used  during  the  year  18G0.  The  equity  of  the  bill  is  put 
on  the  ground  of  a  failure  of  consideration,  for  that  "said  dis- 
tillerj'-  with  all  its  furniture  and  fixtures  was  burned  and  de- 
stroyed as  far  as  it  could  be  burned,  and  that  what  could  not 
be  burned  was  rendered  worthless  and  useless  for  the  pur- 
poses contemplated  in  said  contract,  thus  rendering  it  impos- 
sible to  fulfill  the  contract  of  the  defendants  without  rebuild- 
ing the  distillery  in  said  place,  which  was  not  done,  neither 
was  any  attempt  made  to  deliver  said  distillery,  and  it  could 
not  be  delivered,  and  was  not." 

The  answer  denies  "that  the  distillery  was  rendered  useless 
and  worthless  and  incaj)able  of  delivery,  as  charged  in  the 
bill,  by  reason  of  the  fire  which  occurred,"  and  avers  that 
"  very  little  injury  was  done  to  the  still,  except  to  the  cap  of 
the  still  ;  that  the  fixtures  around  the  still,  which  were  burn- 
ed, could  be  replaced  without  much  trouble  and  expense," 
and  that  the  defendant,  McKenzie,  "authorised  an  agent  soon 
after  the  burning  aforesaid,  to  put  tlio  distillery  and  fixtures 
in  as  good  a  condition  as  they  were  before  the  burning,  at 


206  m  THE  SUPREME  COURT. 

TillmRn  v,  Tillman. 

his  cost,  and  be  is  advised  and  believes  bis  said  agent  was 
not  allowed  to  do  so  by  said  plaintiffs,  and  be  so  avers." 

So,  tbe  parties  are  at  issue  as  to  tbe  matters  of  fact  and 
in  tbis  stage  of  the  proceeding,  tbe  Court  bas  no  means  of 
deciding  wbicb  gives  tbe  true  version.  It  is  tbe  plaintiffs' 
misfortune  to  bave  closed  tbe  contract  by  a  note,  under  seal, 
and  tbe  defendants  bave  tbe  advantage,  because  tbey  bave 
obtained  judgment,  and  bave  tbe  law  on  their  side.  Like  the 
case  of  Mims  v.  McLean^  at  tbis  term,  (ante  200,)  it  is  a  com- 
mon  injunction^  and  as  the  answer  is  full  and  responsive  to 
tbe  bill,  and  tbe  equity  is  not  confessed,  but  is  denied,  tbe 
plaintiffs  have  no  proof,  and,  consequeutly,  have  nothing  to 
stand  on  in  this  stage  of  the  cause,  and  tbe  injunction  ought 
to  have  been  dissolved ;  Capehart  v.  Mhoon^  Busb.  Eq.  37. 

There  is  error  in  the  decretal  order.     This  will  be  certified. 

Per  Cukiam,  Decretal  order  reversed. 


MARTHA  TILLMAN,  Executrix  against  RICHARD  H.  TILLMAN 
AND  OTHERS. 

Where  a  testator  in  his  will,  gave  a  slave  to  one  of  his  sons,  and  then  provi- 
ded that  should  he  sell  such  slave,  the  proceeds  should  go  into  a  common 
fund,  and  afterwards,  by  a  codicil  made  a  contingent  Umitation  of  the  same 
slave  to  a  daughter  in  the  event  of  the  former  legatees  dying  without  leav- 
ing children,  and  further  provided  that  if  any  of  the  slaves  bequeathed  to 
the  daughter,  should  be  sold  by  him,  their  value  should  be  made  good  to 
her  out  of  his  estate,  it  was  held  that  the  said  slave  having  been  sold  by 
the  testator,  the  daughter  had  no  claim  for  its  proceeds  out  of  the  estate. 

Cause  removed  from  tbe  Court  of  Equity  of  Anson. 

The  bill,  in  tbis  case,  was  filed  by  the  executrix  of  David 
Tillman,  praying  the  instruction  of  the  Court  as  to  her  duties 
in  carrying  into  execution  the  will  of  the  said  David.    Tlie 


JUNE  TERM,  1861.  207 

Tillman  v.  Tillman. 

chief  difficult}'  is  in  relation  to  the  disposition  of  the  proceeds 
of  a  slave  named  Calvin,  M'hicli  was  sold  by  the  testator  in  his 
life-time.  In  the  fifth  clause  of  his  will,  he  gives  Calvin, 
amongst  other  slaves,  to  his  son  James  A.  Tillman.  The  tes- 
tator added  to  his  will  a  codicil,  the  second  clause  of  which 
is  as  follows  :  "  The  property  which  I  have  given  James  A. 
Tillman,  in  the  fiftli  item  of  my  will,  in  case  he  should  die 
without  leaving  a  child  or  children,  I  desire  to  be  disposed  of 
in  the  following  manner,  to  wit,  Calvin  I  give  to  Mary  Ann 
Smith  and  lier  children.  Edmund  to  Frances  Cooley  and  her 
children,  and  the  balance  of  the  negroes  to  my  three  youngest 
sons,  William,  David  and  John.  "-  "^^  *  Should  I  sell  any 
of  the  negroes  given  in  the  fifth  item  of  my  will,  the  proceeds 
are  to  go  into  a  common  fund. 

Third.  In  case  I  should  sell  and  dispose  of  any  of  the  ne- 
groes given  to  Frances  A.  Cooley,  or  Mary  Ann  Smith,  either 
in  jny  will  or  codicil,  it  is  my  wish  and  desire  that  the  value 
of  said  negroes  should  be  paid  to  them  out  of  my  estate. 

The  only  disputed  question  in  the  case,  is  as  to  whether  by 
the  clauses  recited,  the  proceeds  of  Calvin  go  to  YV^illiam  C. 
Smith  and  his  wife. 

K  P.  and  B.  Jl.  Battle,  for  the  plaintiff. 
Ashe,  for  the  defendants. 

Battle,  J.  Upon  any  admissible  construction  of  the  will 
of  David  Tillman,  the  proceeds  of  the  slave  Calvin  must  be 
exempt  from  the  claim  of  the  defendants.  Smith  and  wife. — 
That  slave  was,  by  the  5th  clause  of  the  will,  given  expressly 
to  the  testator's  son,  James,  and,  hj  a  direction  equally  ex- 
press, the  testator  declared  in  the  second  clause  of  his  codicil, 
that  should  he  sell  him,  his  proceeds  should  "go  into  a  com- 
mon fund."  So  far  there  is  no  difficulty  ;  but  it  appears  that 
in  the  same  clause  of  the  codicil,  the  testator  limited  Calvin 
to  his  daughter,  Mrs.  Smith  and  her  children,  in  the  event  of 
his  son  James'  dying  without  leaving  issue,  and  in  the  third 
clause  of  the  codicil  he  directed  that  should  he  sell  any  of  the 


m  m  THE  SUPREME  COURT. 

Tillman  v.  Tillman. 

negroes  given  to  his  daughters,  Mrs.  Cooley  or  Mrs.  Smith, 
either  in  his  will  or  his  codicil,  the  value  of  such  negroes,  so 
sold,  should  be  repaid  to  them  out  of  his  estate.  This  direc- 
tion could  certainly  have  been  carried  into  execution  as  to 
any  of  tlie  slaves  given  in  the  will  to  Mrs.  Smith,  but  it  can- 
not apply  to  Calvin,  because  he  cannot  be  said  to  have  been 
given  to  her,  either  by  the  will  or  codicil.  By  the  will,  he 
was  given  to  the  testator's  son,  James,  and  that  gift  was  not 
taken  away  by  the  codicil,  but  only  modified  by  having  en- 
grafted upon  it  an  executory  limitation  to  Mrs.  Smith  and  her 
•children,  contingent  upon  the  event  of  the  legatee,  James' 
dying  without  leaving  issue. 

But  it  is  contended  that  by  the  sale  of  the  slave  in  question, 
the  legacy  to  James  was  adeemed,  and  it  is  thence  inferred 
that  Mrs.  Smith  and  her  children  took  a  present  interest  in 
him  or  his  proceeds.  Tiiis  argument  will  not  answer,  because 
if  the  sale  of  the  slave  was  an  ademption  of  the  legacy,  ag  to 
the  legatee,  James,  it  must  be  equally  so  as  to  the  ulterior 
legatees,  Mrs.  Smith,  and  her  children.  The  cases  cited  by 
the  counsel  do  not  apply,  because  they  were  not  cases  of 
ademption,  but  only  cases  where  the  death  of  the  legatee  for 
life,  in  the  life-time  of  the  testator  enabled  the  ulterior  lega- 
tees to  come  into  possession  of  the  legacies  immediately  upon 
the  death  of  the  testator.  See  Rioliardson  v.  Vanhook,  3  Ire. 
Eq.  581. 

There  must  be  a  declaration  that  the  defendant.  Smith  and 
wife,  are  not  entitled  to  have  the  j)roceeds  of  the  slave  Calvin, 
sold  by  the  testator  in  his  life-time  paid  to  them  out  of  the  es- 
tate, and  as  no  other  difficulty  in  the  construction  of  the  will 
is  suggested,  a  decree  may  be  drawn  in  accordance  with  the 
above  declaration. 

Pee  Curiam,  Decree  accordingly. 


JUl^E  TERM,  1861.  209 


Yarborough  v.  Yai'borouglL 


JAMES  S.  YARBOROUGH  against  FREDERICK  YARBOROUGH  AND 

ANOTHER. 

Where  the  friends  of  an  infant  made  an  exchange  of  his  slaves  for  others,  and 
those  received  in  his  behalf  were  carried  off  by  his  friends  and  sold,  and 
he  afterwards,  without  taking  any  benefit  from  the  arrangement,  repudia- 
ates  it,  and  recovered  in  trover  for  those  belonging  to  him,  a  court  of  equity 
will  not  interfere  to  restrain  his  execution,  with  the  .view  of  compelling 
him  to  return  the  slaves  received  on  his  behalf  or  account  for  their  value. 

Appeal  from  tlie  Court  of  Equity  of  Franklin  county. 

In  the  year  1S43,  Frederick  Battle,  of  Nash  county,  in  this 
St'ate,  by  deed  of  gift,  duly  executed,  gave  to  the  defendants, 
Frederick  Yarborough  and  Emily  Yarborongh,  (his  grand- 
children) six  slaves,  amongst  whicli,  were  the  two  Robin  and 
Burton,  wlio  are  more  particularly  the  subject  of  this  suit. 
These  slaves  were  in  the  possession  of  Thomas  E.  Yarborough, 
the  defendants'  father,  in  the  State  of  Arkansas,  he  having 
been  permitted  to  take  them  tliither  by  the  said  Frederick 
Battle. 

The  plaintiff  having  a  claim  upon  certain  other  slaves, 
which  were  in  the  possession  of  Thomas  E.  Yarborough,  to 
wit,  Lewis,  Ailsy  and  Sarah,  went  to  the  State  of  Arkansas, 
and  was  about  to  bring  them  back  to  this  State,  whicii  (as  the 
bill  alleges)  was  disagreeable  to  the  family  of  the  said  Thom- 
as, and  particularly  to  his  wife,  Mary  Ann,  who  was  attached 
to  the  slaves  about  to  be  removed  ;  therefore,  with  the  advice 
and  concurrence  of  the  parents  of  the  defendants,  and  other 
family  friends,  tlie  plaintiff  conveyed  to  one  John  L.  Gervais, 
all  the  other  slaves,  given  by  F.  Battle,  to  the  defendants, 
excepting  Burton  and  Robin,  to  wit,  Fanny,  Milbury,  Owen 
apd  Ailsey,  also  three  others,  not  given  them,  but  which  were 
all  in  the  possession  of  their  father,  to  wit,  Ailsey,  (the  elder) 
Lewis,  and  Sarah,  in  trust  for  the  benefit  and  support  of  the 
said  Thomas  E.  and  his  wife,  Mary  Ann,  for  their  lives,  and 
then  to  all  their  children,  of  whom  there  were  four  surviving, 
including  defendants.  This  deed  of  trust  recites,  as  a  consid- 
eration the  brotherly  love  and  affection  ^vhich  the  said  James 


aid  m  THE  SUPREME  COURT. 


Yarborough  v.  Yavborough. 


S.,  the  plaintiff,  has  for  the  said  Mary  Ann,  and  her  children, 
and  the  sum  of  ten  dollars  ca§h  to  him  in  hand  paid  ;  but  the 
real  consideration,  as  set  forth  in  the  bill,  was  the  surrender 
by  Thomas  E.  Yarborou2:h  to  th^  plaintiff  the  two  slaves, 
Robin  and  Burton,  so  as  aforesaid  given  to  the  defendants 
by  their  grand-father.  These  slaves,  the  plaintiff  immediate- 
ly put  into  the  market' somewhere  in  the  southwest  and  con- 
verted them  into  money. 

The  defendants  being  both  very  young,  not  having  taken 
any  benefit  under  this  arrangement,  nor  having  been  con- 
sulted about  it,  through  their  maternal  uncle,  Thomas  J.  Bat- 
tle, as  their  next  friend,  brought  an  action  of  trover  in  the 
Superior  Court  of  Franklin  county,  and  recovered  as  the 
value  of  the  said  slaves,  Robin  and  Burton,  $2992,  with  inter- 
est and  costs.  The  prayer  o,f  the  plaintiff"  is,  that  the  defend- 
ants be  enjoined  from  taking  out  execution  on  this  judgment, 
until  the  slaves,  Lewis,  Ailsey  (the  elder)  and  Sarah,  shall  be 
surrendered  to  him,  or  their  value  ci'edited  on  the  judgment. 

The  defendants  both  answered  at  length,  but  the  facts,  set 
out  by  them,  become  unimportant  from  the  view  taken  of  the 
subject  by  the  Court. 

On  the  coming  in  of  the  answers,  the  defendants'  counsel 
moved  to  dissolve  the  injunction,  which  was  refused  by  the 
Court,  and  an  order  made  that  it  be  continued  to  the  hearing 
of  the  cause  ;  from  which  the  defendants  appealed. 

a.  B.  Gilliam  and  Jliller,  for  the  plaintiff, 
B.  F.  Moore  and  Leims^  for  the  defendants. 

PiSAKSON',  C,  J.  We  are  of  opinion  that  the  bill  does  not 
show  on  its  face  any  equity  against  the  defendants  Frederick 
and  Emily,  who  are  the  plaintiffs  in  the  action  at  law,  and, 
consequently,  the  injunction  was  improvidently  granted. 

Suppose  an  infant  sells  a  negro,  .receives  the  purchase-mo- 
ney and  spends  it,  and  afterwards  avoids  the  contract  by  a 
demand  of  the  negro,  and  a  recovery  in  trover  for  his  value, 
will  a  court  of  equity  enjoin  him  from  issuing  execution,  un- 


JUNE  TEUM,  1861.  211 


yarborough  v.  Yarborough. 


less  he  will  repay  tLe  pnrchase-money,  or  enter  credit  for  the 
amonnt  on  his  judgment?  If  so,  the  policy  of  the  law  in 
protecting  infants  against  their  supposed  want  of  discretion,. 
will  be  defeated  ? 

Ov  suppose  an  infant  exchanges  negroes,  and  the  negro  re- 
ceived by  him  is  sold  and  carried  to  parts  unknown,  and  af- 
terwards he  avoids  the  contract  by  a  demand  of  the  negro  given 
by  him  in  exchange,  and  a  recovery  in  trover  for  his  value,  will 
a  court  of  equity  enjoin  him  from  issuing  execution  unless  he 
will  return  the  negro  received  by  him,  or  account  for  the  val- 
ue? No  authority  was  cited  in  support  of  the  position,  and  it 
is  manifest,  that  such  an  interference  by  a  court  of  equity 
would,  in  effect,  deprive  infants  of  the  protection  of  the  law^ 
and  subject  them  to  all  the  consequences  of  their  want  of  dis- 
cretion. 

In  these  cases,  it  is  assumed  that  the  infant  is  a  party  to  the 
contract,  but  in  the  case  made  by  the  bill,  waiving  the  objec- 
tion that  as  the  deed  to  Gervais  recites  for  its  consideration 
"  brotherly  love  and  affection,"  and  the  sum  of  "  ten  dollars 
cash,"  it  is  not  admissible  to  add  to  and  contradict  the  deed  by 
averring,  that  in  point  of  fact,  the  real  consideration  was  ne- 
groes Robin  and  Burton,  there  is  no  allegation  that  the  infants 
Frederick  and  Emily  were  parties  to  the  supposed  exchange 
of  negroes,  and  the  amount  of  it  is,  that  the  plaintiff,  by  an 
arrangement  with  the  parents  and  friends  of  the  infants,  took 
Robin  and  Burton,  two  negroes  belonging  to  them,  and  con- 
verted them  to  his  own  use,  and  in  lieu  thereof,  and  by  way 
of  compensation,  executed  the  deed  to  Gervais,  conveying 
certain  other  slaves  in  trust  for  the  parents  during  life,  and 
then  in  trust  for  their  children,  including  the  defendants, 
Frederick  and  Emily. 

The  question  is,  when  Frederick  and  Emily  bring  an  ac- 
tion of  trover  against  the  plaintiff  and  recover  damages  for 
the  conversion  of  Robin  and  Burton,  has  the  plaintiff  an  equi- 
ty to  enjoin  the  collection  of  the  judgment,  on  the  ground, 
that  the  negroes  conveyed  b}^  him  to  Gervais,  are  in  the  State 
of  Arkansas,  where  they  were  at  the  date  of  the  conveyance^ 


212  m  THE  SUPREME  COURT. 

In  the  matter  of  Yates. 

and  some  of  them  have  been  disposed  of  by  the  father  of 
Frederick  and  Emily  ?  In  other  words,  can  the  legal  rights 
of  these  infants  be  fettered  and  embaiTassed  by  reason  of  an 
alleged  arrangement  with  their  parents — to  which  they  were 
not  parties,  which  was  obviously  against  their  interest — under 
which  they  have  not  acted  or  taken  benejS.t,  and  which  they 
repudiated  and  avoided  by  instituting  their  action  at  law  for 
the  conversion  of  Robin  and  Burton  ?  A  bare  statement  of  the 
case  is  the  strongest  argument  that  can  be  made  on  the  part 
of  the  infants ;  because  it  shows  that  if  Equity  interposes 
against  them  under  such  circumstances,  the  protection  which 
the  law  gives  to  infants,  is  illusory ;  and  not  only  so,  but  that 
their  propei^ty  may  be  taken  from  them  without  any  contract 
on  their  part,  but  simply  by  force  of  an  understanding  amoug 
their  parents  and  friends,  in  respect  to  which  they  were  too 
young  to  be  consulted,  and  under  which  they  have  taken  no 
benefit,  but,  on  the  contrary,  disavow  and  repudiate  it  ? 

There  is  error  in  the  decretal  order  by  which  the  injimction 
was  continued  until  the  hearing.  The  injunction  ought  to  be 
dissolved.    This  will  be  certified. 

Pek  CuKiAivi.  Decretal  order  reversed. 


In  the  matter  of  LEVI  S.  YATES,   Guardian. 

Upon  the  refusal  of  a  bidder  at  a  sale  of  land  by  the  master,  under  a  decree 
of  Court,  to  comply  with  his  bid,  it  is  not  proper,  in  the  first  instance,  to 
order  a  resale  of  the  land,  and  that  the  delinquent  bidder  pay  the  differ- 
ence between  the  former  and  the  latter  sales.  The  proper  course  is  for  the 
master  to  report  the  facts  to  the  Court,  and  for  the  bidder  to  be  put  under  a 
rule  to  show  cause  why  he  shall  not  comply  with  his  contract. 

This  was  an  appeax,  from  a  decretal  order  made   by  the 
Court  of  Equity  of  Martia  copnty. 


JUNE  TERM,  1861.  213 


In  the  matter  of  Yates. 


A  petition  had  been  filed  by  Levi  S.  Yates,  guardian  of 
Sarah  E.  Moore,  for  the  sale  of  certain  lauds,  lying  in  Martin 
county,  and  a  decree  of  the  Court  for  a  sale  passed  accordingly, 
to  be  made  b}'^  C.  B,  Ilassell,  the  clerk  and  master  of  the  Court. 
At  the  next  term  of  the  Court,  (Spring  Term,  ISGl,)  the  mas- 
ter reported  (among  other  sales)  that  he  had  oftered  the 
*'  Gardner  tract"  for  sale,  when  A.  II.  Coffield,  for  Coffield 
and  Barnhill,  had  become  the  last  and  highest  bidder  at  the 
j)ricc  of  tpG,000 ;  that  tliis  tract  consisted  of  two  parcels,  one 
of  which  contained  two  hundred  acres,  which  is  described  in 
the  report ;  the  other  contained  one  hundred  and  sixt}-  acres, 
which  was  subject  to  a  lease  of  twenty -four  years,  of  which 
seventeen  years  was  unexpired.  The  master  further  report- 
ed, that  after  having  at  first  promised  to  comply  with  the 
terms  of  the  sale,  the  said  bidders  became  dissatisfied  with 
their  bid,  and  after  much  vacillation,  they  finally  gave  him 
notice  that  they  declined  to  give  bond  and  surety  according 
to  the  conditions  made  known  by  him  at  the  sale.  The  peti- 
tioner, Yates,  filed  aflidavits  at  this  term,  going  to  show  the 
explicit  terms  on  which  the  sale  was  made,  and  that  the  pre- 
cise character  and  quantity  of  the  two  parcels  were  distinctly 
made  known  by  the  master  to  A.  H.  Coffield  previously  to 
his  making  tlic  bid  for  himself  and  Barnhill, 

The  transcript  sets  out  that,  at  this  term,  the  following  or- 
der was  made  in  the  cause  : 

"  Ordered  that  the  lands  purchased  by  Coffield,  for  Coffield 
and  Barnhill,  be  resold  by  the  master,  and  that  the  purchaser 
pay  the  dilference,  if  any,  between  the  first  and  second  sale 
of  it,  he,  Coffield,  having  failed  to  comply  with  the  terms  of 
sale."  To  which  is  added  the  further  entry :  "  From  the  or- 
der and  dcci'ce  of  the  Court,  that  the  purchasers  pay  the  dif- 
ference, A.  11.  Coffield  and  T.  E.  Barnhill  pray  an  appeal  to 
the  Supreme  Court,  which  is  allowed  to  them  by  his  Ilonor." 


B.  F.  Moore^  for  Yates. 
WmsUm,  Jr.,  for  Coffield. 


214  IN  THE  SUFJREME  COURT. 

In  the  matter  of  Yates. 

•  Pearsox,  C.  J.     There  is  error  in  the   decretal  order  ap- 
pealed froin.  • 

The  orderly  mode  of  proceeding  was  for  the  Court  to  ac- 
cept the  bid  of  Coflield  and  Barnhill  by  confirming  the  con- 
tract of  sale,  and  tlien  upon  the  matter  set  out  in  the  report, 
to  enter  a  rule  against  them,  to  show  cause  why  they  should 
not  be  required  to  comply  with  the  terms  of  the  sale.  On 
the  return  of  the  rule,  the  Court,  considering  the  whole  mat- 
ter, as  well  the  facts  set  out  in  the  report,  as  those  wliich 
might  be  relied  on  by  them,  could  dispose  of  it  in  one  of  three 
ways: 

1.  By  an  order  tliat  Coffield  and  Barnhill  do  execute  and 
perform  what  they  had  undertaken  to  do,  according  to  the 
terms  of  their  bid  ;  which  would,  in  effect,  be  a  decree  for  the 
specific  performance  of  the  contract — the  Court  having  juris- 
diction to  make  the  decree  as  an  order  in  the  cause,  as  fully 
as  on  ''an  original  bill  for  specific  performance,"  by  reason  of 
the  fact  that  the  contract  is  within  its  cognizance,  and  all  the 
necessary  parties  are  before  it. 

2.  By  an  order  releasing  Cofiield  and  Barnhill  from  tlieir 
bid,  rescinding  the  contract  and  directing  the  land  to  be  sold 
over  again. 

3.  Which  is  the  middle  course :  By  an  order  without  abso- 
lutely releasing  them  from  their  bid  and  rescinding  the  con- 
tract, that  the  land  be  sold  over  again,  they  undertaking,  as 
a  condition  precedent  to  this  order  of  resale,  which  is  nuide 
for  their  benefit  and  on  the  basis  of  their  liability  to  a  decree 
for  a  specific  performance,  to  pay  the  costs  and  charges  inci- 
dent to  a  second  sale,  and  also  to  make  good  the  dillercnce  in 
the  price,  in  the  event  that  as  high  a  bid  is  not  obtained  ; 
Maiding  v.  Yarh'uugh  &  Conht/,  (not  reported,*)  decided  at 
June  Term,  185G  ;  see  also  Clatoii  v.  Glover,  3  Jones'  Eq.  371. 

♦There  was  no  opinion  filed  by  tlie  Court  in  the  above  case,  but  as  the 
whole  matter  appears  in  the  decree  filed  in  the  case,  and  it  may  bo  of  service  to 
the  profession  as  a  precedent,  the  Reporter  takes  the  liberty  of  appending 
such  decree  as  a  note  to  this  case. 


JUNE  TERM,  1861.  215 

In  the  matter  of  Yates. 

For  tlie  error  in  not  pursuing  this  orderly  mode  of  proceed- 
inff,  the  decretal  order  must  be  set  aside. 

This  extends  to  the  whole  of  the  order  in  respect  to  the  land 
bid  off  by  Coffield  and  Barnnill ;  for,  although  it  was  sug- 
gested by  their  counsel,  that  the  part  of  the  order,  which  di- 
rects resale,  was  not  appealed  from,  still,  that  was  inciden- 
tally made  with  reference  to  the  part  appealed  from,  and  the 
whole  must  be  treated  as  connected  together  and  making  but 
one  order,  and  not  two  distinct  and  independent  orders,  so  as 
to  allow  the  entire  subject  to  come  before  nie  Court,  and 
leave  all  the  parties  concerned,  to  take  such  action  as  they 
may  be  advised. 

For  tlie  purpose  of  leaving  the  question  entirely  open  upon 

XoRTQ  Carolina,  &s  : 

Supreme  Court,  June  Term,  185G. 
E.  L.  Harding  v.  Edward  Yarbroiigh  and  others,  July  21st,  1856.  Upon 
the  opening  of  the  matter  this  day  before  the  Court,  by  the  counsel  for  the 
plaintiff,  it  was  alleged  that  by  an  order,  in  this  cause,  it  was,  among  other 
things,  ordered  that  the  hotel  and  premises,  in  the  pleading,  in  this  cause, 
named,  should  be  sold  by  E.  B.  Freeman,  as  a  commissioner  of  this  Court,  to 
the  best  purchaser  that  could  be  got  for  the  same,  to  be  aUowed  of  by  the 
Said  commissioner.  That  in  pursuance  of  the  said  order,  the  said  hotel  and  pre- 
mises were  sold  by  the  said  commissioner  on  the  28th  day  of  June,  past,  and 
that  Edward  Yarbroiigh  and  Dubney  Cosh}'',  having  bid  the  sum  of  fifteen 
thousand  dollars  for  the  said  hotel  and  premises,  the  said  commissioner,  by 
his  report,  allowed  the  said  Edward  Yarbiough  and  Dabne}'^  Cosby  to  be  the 
purchaser  thereof,  at  that  sum,  which  snin,  by  the  terms  of  the  sale,  was  to 
be  paid  in  sums  as  follows,  namely,  $500  in  cash  down  ;  $4333  on  the  Ist 
day  of  July,  1857,  with  interest  from  the  day  of  sale ;  $4833  on  the  first  day 
of  July,  1858,  with  interest,  and  $4834  on  the  first  day  of  July,  1859,  with 
like  interest,  and  each  of  said  sums  of  .$4833  was  to  be  secured  by  the  bond 
of  the  purchaser,  with  approved  security.  And  that  the  said  commissioner, 
by  his  said  report,  had  also  reported  that  the  said  sum,  so  bid,  was  a  fair  price, 
and  that  they  had  paid  down,  in  ca.sh,  the  said  sum  of  $500,  to  the  commis- 
gioner,  but  had  failed  to  give  approved  security  for  the  payment  of  the  resi- 
due of  the  price  aforesaid :  whereupon,  the  Court,  upon  hearing  the  decre- 
tal order  for  sale  of  the  hotel  and  premises,  made  at  the  last  term  of  tliis 
Court,  and  the  report  of  the  commissioner  aforesaid,  on  motion  of  counsel  for 
the  plaintiff,  there  being  no  objection  thereto,  doth  confirm  the  sale  to  the 
said  Dabney  Cosby  and  Edward  Yarbrough.     And  thereupon,  it  is  prayed 


316  IN  THE  SUPEEME  COUET. 

In  the  matter  of  Yates. 

its  merits,  this  Court  declines  to  express  any  opinion  as  to 
whether  the  orders,  made  in  the  Court  below,  do  or  do  not 
amount  to  an  acceptance  of  the  bid  of  Coffield  and  Barnhill, 
or  to  a  ratification  of  the  contract  if  the  master  exceeded  his 
power ;  or  upon  the  question  whether,  supposing  the  master 
to  have  exceeded  his  power,  Coffield  and  Barnhill  were  not 
at  liberty  to  withdraw  their  bid  at  any  time  before  the  action 
of  the  master  was  ratified. 

Pee  Cueiam,  Decretal  order  reversed. 


by  the  counsel  of  the  plaintiflf,  that  the  purchasers  aforesaid  might,  on  or  be- 
fore Fi'iday  the  25th  July,  instant,  complete  their  purchase  aforesaid,  accord- 
ing to  the  terms  of  the  sale,  or  on  that  day  show  to  the  Court  cause  to  the 
contrary.  And  in  the  event  that  they  do  not  complete  their  purchase,  nor 
show  good  cause  to  the  contrary,  then,  that  the  said  commissioner  may  be 
directed  forthwith  to  resell  the  said  hotel  and  premises,  and  that  all  the  costs, 
charges  and  incidental  expenses  attending  the  last  sale  and  incidental  thereto, 
and  occasioned  by  the  default  of  the  said  Dabney  Cosby  and  Edward  Yar- 
brough,  together  with  any  loss  or  deficiency  in  price  and  interest  arising  by 
such  second  sale  may  be  ascertained  by  the  clerk  of  this  Court,  and  the  same 
be  paid  into  the  office  of  this  Court  by  the  said  Cosby  and  Yarb rough, 
for  the  benefit  of  the  parties  interested  in  the  premises,  according  to 
their  several  interests.  And  that  service  of  this  order  on  the  said  Cosby 
and  Yarbrough.  be  made  by  the  marshal  of  this  Court — and  in  case  of  the 
absence  of  either  of  them,  that  service  on  his  attorney  be  deemed  good  ser- 
vice— whereupon,  upon  hearing  the  counsel  for  the  plaintiff,  the  decretal  or- 
der for  the  sale,  made  at  the  last  term  of  this  Court,  and  the  report  of  the 
commissioner  aforesaid,  this  Court  doth  order  that  notice  of  this  proceeding- 
be  forthwith  served  on  the  said  Cosby  and  Yarbrough  by  the  marshal  of  this 
Court,  in  the  manner  and  according  to  the  prayer  of  the  plaintiff,  that  they 
complete  their  purchase  or  appear  at  the  time  specified,  and  shew  cause  why 
the  prayer  of  the  plaintiif  should  not  be  granted. 

A  true  copy.— Test,  E.  B.  FREEMAN,  Clerk. 


JUKE  TERM,  1861.  21Y 


Norfleet  v.  Slade. 


WILLIAM  NORFLEET  AND  W.  P.  LLOYD  Executors  against  HELEN 
B.  SLADE  AND  OTHERS. 

Where  a  testator  had  an  estate  in  laud  limited  over  to  the  defendant  on  his 
dying  without  issue,  and  he  devised  the  said  land  to  be  worked  for  two 
years  after  his  death  for  the  payment  of  his  debts,  and  in  his  will  he  gave 
valuable  legacies  to  the  defendant,  which  she  elected  to  take,  it  was  held 
that  (hough  the  testator  died  without  issue,  yet  the  provision  for  the  pay- 
ment of  the  debts  must  be  enforced. 

Where  a  testator  had  derived  certain  slaves  from  his  maternal  grandfather, 
who  had  lived  in  the  county  of  Martin,  and  it  appearing  to  be  a  leading  pur- 
pose widi  him  to  restore  such  slaves  to  their  original  place  of  residence,  and 
to  their  family  connexions,  he  bequeathed  to  one  in  Martin  as  follows :  "all 
my  negroes  on  my  Roanoke  plantation,  (which  laid  in  the  county  of  Mar- 
tin,) also,  all  my  negroes  on  my  Edgecombe  farms,  which  1  got  from  Mar- 
tin county,  whether  I  inherited  or  purchased  them,"  it  was  held  that  slaves 
bought  by  the  testator  in  Martin  or  elsewhere,  and  removed  from  that 
county  to  Edgecombe,  and  the  children  born  in  Edgecombe  of  women  re- 
moved from  Martin,  and  one  born  of  a  woman  on  the  Roanoke  plantation, 
but  which  was  casually  residing  elsewhere,  all  passed  under  said  bequest. 

Cause  removed  from  the  Court  of  Equity  ot  Edgecombe. 

The  bill  in  this  case  is  filed  bj  the  executors  of  Plemy  S. 
Lloyd,  settiuo-  forth  difficulties  in  the  wa}^  of  a  satisfactory 
administration  of  the  estate,  and  praying  that  the  several  dis- 
agreeing legatees  may  come  in  and  litigate  the  questions  made 
in  the  case,  and  that  they  may  be  protected  by  a  decree  of 
the  Court,  as  to  these  several  matters  of  dispute.  The  bill 
sets  out  that  the  testator  owned  in  Martin  county,  one  large 
tract  called  in  the  will  his  "  Roanoke  plantation,"  which  was 
devised  to  him  by  his  maternal  grandfather,  Henry  Slade, 
with  a  limitation  over  to  his  aunts,  Helen  B.  Slade  and  Mrs. 
Chloe  Hinton,  upon  his  dying  without  issue,  and  two  other 
tracts  adjoining  this,  which  the  testator  purcliased,  the  one 
from  William  Slade,  and  the  other  from  A.  Williams ; 
also,  several  tracts  of  land  and  plantations  in  Edgecombe 
county  ;  on  the  plantations  in  both  of  which  counties  the  tes- 
tator had  large  numbers  of  slaves,  and  other  personal  proper- 
ty, most  of  which  had  been  bequeathed  to  him  by  his  pater- 


218  m  THE  SUPEEME  COUET. 

Norfleet  v.  Slada 

ual  grandfather,  Henrj  Slade,  and  his  maternal  grandmother, 
Mary  Gregory. 

The  testator  being  indebted  very  largely,  provided  for  tiie 
payment  of  his  debts  as  follows:  "I  authorise  and  empoW' 
er  my  said  executors  to  carry  on  my  farms  for  the  term  of  two 
years  after  my  decease,  and  to  adopt  all  measures  for  that  pm*- 
pose,  if  the  same  be  necessary,  to  pay  my  debts,  and  to  apply 
the  income  thereof  as  the  same  may  be  received,  to  the  pay- 
ment of  m}'-  said  debts,"  with  a  fiu^ther  devise  of  his  town 
property,  for  the  same  purpose. 

He  then  proceeds  to  give  and  bequeath  to  his  aunt,  Helen 
B.  Slade,  thus:  "all  my  negroes  on  my  Eoanoke  planta- 
tion ;  also,  all  my  negroes  on  my  Edgecombe  farms,  which  I 
got  from  Martin  county,  whetlier  I  inherited  or  purchased 
them."  with  a  residuary  clause  to  his  sister  and  two  brothers. 
About  the  year  1858,  the  testator's  grandmother,  Mrs.  Grego- 
ry, having  died,  and  devised  to  him  valuable  farms  in  Edge- 
combe, the  testator  removed  his  residence  from  Martin  coun- 
ty, where  he  had  formerly  lived,  to  the  county  of  Edgecombe, 
and  brought  with  him  a  good  many  of  the  slaves  that  had 
been  worked  upon  the  Eoanoke  farms.  The  testator  died  in 
Philadelphia  in  January,  1860,  and,  at  the  time  of  his  death, 
there  were  on  his  Eoanoke  plantation  twenty-seven  slaves, 
(which  are  set  forth  by  name  in  the  plaintiff's  bill,)  all  of 
which  slaves  were  a  part  of  those  and  their  descendants  be- 
queathed to  the  testator  by  the  said  Henry  Slade,  except  one 
by  the  name  of  Weaver,  who  was  bought  in  Eichmond,  in 
1856,  and  carried  to  the  Eoanoke  plantation,  wdiere  he  has 
remained  ever  since,  and  never  left  that  plantation.  There 
were  thirty-live  slaves  brought  from  the  Eoanoke  plantation 
to  Edgecombe,  twenty-two  of  which  had  been  bequeathed  to 
the  testator  by  his  grandfather,  Henry  Slade,  or  were  the  de- 
scendants of  such,  and  the  remainder  of  them,  and  their  in- 
crease, were  bought  by  the  testator  in  various  counties  con- 
tiguous, and  were  taken  to  the  Eoanoke  plantation ;  two  of 
these,  Anderson  and  Thrower,  were  purchased  in  Martin 
county.     Eour  of  the  slaves  on  the  Edgecombe  farms,  to  wit, 


[      .  JUNE  TERM,  1861. 


219 


Norfleet  v.  Slade. 


Granville,  Betsy,  Francis  and  London,  were  offspring  of  fe- 
male slaves  removed  from  Martin  to  Edgecombe,  and  born  in 
the  latter  county. 

One  of  the  questions  raised,  is  whether  the  right  and  inter- 
est of  the  defendant,  Helen,  in  the  said  Roanoke  plaiitation, 
devised  to  her  as  aforesaid  in  remainder  by  her  father,  is  sub- 
ject to  be  used  according  to  the  said  will  of  II.  S.  Lloyd,  to 
pa}'  his  debts  if  necessary. 

A  further  question  is,  as  to  what  slaves  pass  by  the  said  will 
to  the  legatee,  Helen  B.  Slade,  whetiier  all  the  slaves  passed 
that  were  worked  on  the  Roanoke  plantation  at  the  time  of 
testator's  death,  or  only  such  as  were  derived  from  his  said 
grandfather,  Henry  Slade,  and  whether  the  slave,  "Weaver, 
the  slave  purchased  in  Richmond,  passed  to  her  ;  also,  wiieth- 
er  Anderson  and  Thrower,  slaves  purchased  in  Martin  by  the 
testator,  and  brought  to  Edgecombe,  are  included  in  the  be- 
quest to  her,  the  said  Helen.  Whether  Granville,  Betsy, 
Francis  and  London,  the  descendants  of  female  slaves,  brought 
from  Martin,  and  born  in  Edgecombe  county  after  their  remo- 
val, pass  to  Helen  B.  Slade  under  the  clause  in  question.  Sally 
was  born  of  a  woman  which  had  been  given  by  Henry  Slade 
to  the  testator,  and  belonged  to  the  Roanoke  plantation.  She 
had  been  residing  among  the  slaves  of  the  defendant,  Helen 
B.  Slade,  for  a  special  reason,  and  was  so  residing  when  ihe 
testator  died  ;  another  question  is,  whether  she  passed  by  this 
clause. 

The  defendants  answered,  insisting  on  their  peculiar  views 
of  the  questions  of  law  governing  the  construction  of  the  will 
under  consideratioil*,  but  not  disputing  any  of  the  lacts  above 
stated. 

The  cause  was  set  down   for  hearing  on  the  bill,  answers  , 
and  exhibits,  and  sent  to  this  Court  by  consent. 

B.  -F.  Iloore,  for  the  plaintiff. 

Hodmaii  and  DoHchy  for  the  defendants. 

JVIanly,  J.     The  bill  is  filed  for  the  construction  of  the  will 


220  IN  THE  SUPKEME  COtJET. 

Norfleet  v.  Slacle. 

of  Henry  S.  Lloyd,  in  certain  particulars.  Upon  a  conside- 
ration of  the  will,  in  connection  with  the  first  and  principal 
point  npqn  which  the  advice  of  the  Courtis  asked,  it  seems  tons 
clear  that  the  testator  expected  and  intended  all  the  plantations 
worked  by  him  to  be  continued  in  cultivation  two  years,  for 
the  payment  of  his  debts,  and  so  far  as  this  is  practicable 
and  consistent  with  the  rights  of  others,  it  ought  to  be  carried 
into  execution.  With  respect  to  the  Roanoke  plantation,  it 
appears  from  the  will  of  Henry  Slade,  to  be  devised  to  the 
testator,  Lloyd,  with  a  limitation  over  in  the  case  of  his  death 
without  issue,  to  Helen  B.  Slade  and  Chloe  Hinton.  The 
death  of  Lloyd,  without  issue,  as  stated  in  the  pleadings,  vests 
the  rights  of  property  and  possession  immediately  in  the  de- 
visees in  remainder,  and  with  this  result  we  cannot  interfere, 
so  far  as  Mrs.  Hinton  is  concerned.  But  inasmuch  as  Miss 
Slade  receives  a  large  estate,  real  and  personal  nnder  the  will, 
she  is  bound  to  carry  out,  even  to  the  prejudice  of  her  rights, 
the  manifest  purpose  of  the  testator  in  respect  to  his  Roanoke 
plantation.  This  is  upon  a  principle  of  equity  that  a  legatee 
who  elects  to  take  under  the  will,  must  do  so  subject  to  all 
the  provision^  of  the  instrument  that  afi^ects  his  interest.  He 
cannot  accept  the  good  and  repudiate  the  bad.  The  Court  is 
of  opinion,  tfierefore,  that  the  profits  of  the  Roanoke  planta- 
tion, with  the  others,  should  be  appropriated  for  two  years,  if 
necersary,  to  pay  tlie  debts  of  the  estate,  subject  to  the  right 
of  Mrs.  Hinton  to  a  proper  rent  for  her  interest  in  the  same. 
It  will  follow  that  the  slaves  given  to  Miss  Slade,  must  also 
be  taken  by  her,  subject  to  the  incumbrance  of  working  to 
pay  debts  for  two  years,  if  necessary.  The  bequest  to  Helen 
B.  Slade  is  in  the  following  words :  "  and  I  also  give  and  be- 
queath to  my  said  aunt  Helen,  all  my  negroes  on  my  Roan- 
oke plantation,  also,  all  my  negroes  on  my  Edgecombe  farms, 
which  I  got  from  Martin  county,  whether  I  inherited  or  pur- 
chased them."  The  bequest  embraces,  as  we  think,  all  the 
slaves  that  were  at  the  time  worked  upon  the  Roanoke  farm, 
without  regard  to  the  source  from  which  they  were  derived. 
It,  consequently,  includes  Weaver,  who  was  purchased  in  Rich- 


JUNE  TERM,  1861.  221 

Adams  v.  Jones. 

mond,  and  put  to  labor  on  the  Roanoke  farm.  The  child,  Sal- 
ly, is  also  included,  for  although  being  at  the  time  among  the 
slaves  of  his  aunt,  at  her  residence,  the  child  was  born  on  the 
Roanoke  plantation  of  a  mother  belonging  to  that  estate,  and 
was  removed  for  a  special  reason  and  purpose  only.  It  was 
not  permanently  settled  or  fixed  at  the  plantation  of  the  aunt, 
and,  consequently,  had  not  lost  the  domicil  of  its  birth.  It  is 
to  be  regarded,  therefore,  as  one  of  the  negroes  on  the  Roan- 
oke plantation. 

Considering  the  other  clause  of  this  bequest,  we  are  of  the 
opinion  that  all  the  slaves  on  the  Edgecombe  ftirms  which  had 
been  removed  to  them  from  Martin,  no  matter  how  or  from  what 
quarter  derived,  pass  under  the  bequest ;  also,  the  slaves  on 
the  Edgecombe  farms  which  had  been  bought  in  Martin.  This 
will  include  Anderson  and  Thrower. 

The  children,  Granville,  Betsy,  Francis  and  London,  appear 
to  be  offspring  of  slaves  removed  from  Martin  to  Edgecombe, 
but  born  in  the  latter  county.  While  the  testator  is  making 
provision  to  restore  the  slaves  to  their  original  places  of  resi- 
dence, and  to  their  family  connexions,  it  would  be  an  incon- 
sistent and  harsh  construction  to  hold  that  he  intended  to  se- 
parate infant  children  from  their  moihers.  We  think  it  was 
intended  the  children  should  go  with  their  mothers,  and,  con- 
sequently, they  are  embraced  in  the  bequest  to  Miss  Slade. 

Pee  Curiam,  Decree  accordingly. 


JAMES  ADAMS,  Extor,  against  MARTHA  A.  JONES  AND  OTHERS. 

The  words,  '•  wheat  aud  com  on  hand,"  in  a  will,  ivere  held  to  mean  that, 
only,  which  was  in  the  granaries  of  the  testator  at  the  time  of  his  death,  and 
not  to  embrace  the  ungathered  or  standing  crop. 

The  Court  will  not  respond,  at  the  instance  of  an  cx6cutor,  as  to  the  conflict- 
ing interests  of  two  legatees  of  land ;  as  the  executor  has  nothing  to  do 


222  m  THE  SUPREME  COURT. 

Adams  v.  Jones. 

with  the  question.  The  Court  also  will  dedine  to  answer  as  to  a  hypothet- 
ical case. 

Stock  in  a  rail-road  company  is  embraced  in  the  term,  property,  directed  by 
tlie  will  to  be  sold. 

A  deposit  in  a  bank,  is  not  to  be  considered  as  inclnded  among  debts  ordered 
by  the  will  to  be  collected  and  invested  for  the  benefit  of  a  legatee,  espe- 
cially before  a  demand  and  refusal,  on  the  part  of  the  bank,  to  pay. 

Cause  removed  from  the  Court  of  Equity  of  Wake  county. 

The  bill,  in  this  case,  was  filed  by  the  executor  of  Austin 
Jones,  to  obtain  a  construction  of  certain  clauses  of  his  will 
and  codicil,  and  the  several  legatees  were  made  parties  defend-  , 
ants.  N 

In  the  8th  clause,  the  testator  bequeathed  to  his  widow, 
Martha  A.  Jones,  "all  the  wheat  on  hand — all  the  corn  on 
hand,  also  all  the  bacon  and  lard  on  hand." 

At  the  date  of  the  death  of  the  testator,  some  of  the  high- 
land corn  was  ripe  enough  to  be  housed,  but  the  lowland  corn, 
which  composed  more  than  three-fourths  of  his  corn  crop,  was 
not  ripe  enough  to  be  gathered.  There  was  on  hand,  at  this 
date,  about  30  barrels  of  old  corn^  and  a  much  larger  quanti- 
ty at  the  time   of  the  making  of  the  will. 

The  question  propounded  is,  whether  the  ungathered  corn 
passes  under  this  bequest  ?  also  whether  a  share  of  rail-road 
stock  is  included  in  the  meaning  of  the  word  "  property,"  in 
a  ( lause  directing  a  sale. 

The  bill  states  a  controversy  between  the  widow  and  one  of 
the  other  legatees  as  to  the  respective  rights  of  the  two  in  a 
tract  of  land,  devised  in  the  will,  but  from  the  view  taken  of 
the  question  by  the  Court,  it  is  not  necessary  to  be  particu- 
larly stated. 

The  executor  also  seeks  to  be  informed,  "  when  will  the  lia- 
bility to  make  up  for  the  loss  of  slaves,  by  death,  cease."  No 
case  of  the  loss  of  slaves  had  occurred  among  the  legatees  at 
the  filing  of  the  bill. 

At  the  time  of  the  death  of  the  testator,  there  was  to  his 
credit,  in  a  branch  of  the  bank  of  Cape  Fear,  $900,  for  which 
he  had  a  certificate  of  deposit.    The  executor  desires  to  be 


JUNE  TEEM,  1861.  223 

Adams  v.  Jones. 

instructed  whether  this  deposit  is  a  debt  due  to  the  estate  of 
the  testator,  and  as  such,  coming  within  a  direction  to  collect 
debts  and  invest  the  proceeds  for  the  benefit  of  his  minor 
children,  or  is  to  be  considered  as  cash. 

Phillijjs  and  K.  P.  Battle,  for  the  plaintiff. 
Miller,  for  the  defendants. 

Manly,  J.  The  bill  is  filed  to  obtain  a  construction  of  the 
will  of  Austin  Jones,  in  certain  matters  of  doubt,  and  for  an 
account  and  settlement  of  the  estate. 

Taking  these  matters  in  the  order  in  which  they  are  brought 
to  the  attention  of  the  Court,  we  are  of  opinion,  in  the  first 
place,  that  by  the  term,  "  wheat  and  corn  on  hand,"  is  meant 
that,  onl}',  which  was  in  the  granaries  of  the  testator  at  the 
time  of  his  death.  The  terms  used,  are  not  those  com- 
monly resorted  to,  to  designate  growing  crops  or  standing 
grain.  The  words  crop,  or  growing  crop,  or  standing  crop, 
ai'e  those  in  popular  use  for  such  purpose.  The  force  of  the 
expression,  "  on  hand,"  also  leads  to  the  conclusion  that  one, 
who  uses  it,  has  reference  only  to  such  things  as  are  capable 
of  present  deliveiy. 

In  the  second  place,  the  Court  declines  expressing  any  opin- 
ion as  to  the  controversy  between  the  widow  and  the  legatee, 
Turner,  about  the  eighty  acres  of  land.  It  is  a  matter  which 
does  not  concern  the  executor  in  the  settlement  of  the  estate. 
The  parties  interested  must  settle  it  themselves,  in  such  way 
as  they  may  be  advised  is  necessary  and  best. 

The  third  enquiry,  the  Court  also  declines  answering,  for 
the  reason,  that  it  is  hypothetical.  No  one  of  the  negroes, 
given  to  any  of  his  children,  has  died,  and,  therefore,  the  con- 
tingency has  not  arisen,  upon  which  alone,  the  construction  of 
the  9th  clause  of  the  will  can  become  of  any  practical  utility. 

The  share  of  stock  in  the  Haleigh  &  Gaston  rail-road  com- 
pany \%2^i'o])eHy,  to  be  sold  under  the  11th  clause  of  the  will. 
The  word  is  among  the  most  comprehensive  of  those  in  use, 


224  m  THE  SIJPKEME  COURT. 

Ballantyue  v.  Turner. 

to  signify  things  which  are  owned,  and  subject  to  be  owned 
and  enjoyed. 

The  deposit  of  $900  in  the  Cape  Fear  Bank,  is  not  embrac- 
ed, according  to  our  opinion,  among  the  debts  which  are  di- 
rected in  the  11th  clause  of  the  will,  to  be  collected  and  in- 
vested for  the  benefit  of  his  children. 

We  deem  it  unnecessary  to  discuss  or  decide,  in  this  con- 
nection, the  precise  legal  relations  which  subsist  between  a 
general  depositor  and  a  bank.  Our  duty  is  to  ascertain  the 
meaning  of  the  testator,  in  the  language  employed  by  him  in  the 
clause,  in  question,  and  the  true  rule  is,  to  interpret  it  accord- 
ing to  its  ordinary  acceptation.  The  common  understanding, 
we  think,  is,  to  regard  a  deposit  in  the  bank  as  cash,  (at  any 
rate  prior  to  a  demand  and  refusal)  and  not  as  a  debt  due. 
In  making  out  a  descriptive  list  of  one's  estate,  it  would  be 
certainly  so  classed.  We  conclude,  therefore,  the  testator  did 
not  intend  to  embrace  the  bank  deposit  by  the  use  of  such 
words  as  "  all  the  debts  due  m'e." 

Let  an  account  conforming  to  these  views  be  ordered. 

Pee  Cueiam,  Decree  accordingly. 


WILLIAM  BALLANTYNE,   Executor,  against  CHARITY    TURNER 
AND  OTHERS. 

Where  a  testator  gave  directions  in  his  will,  that  his  wife  should  "  put  out  his 
money  and  take  security  for  it,"  it  was  held  that  the  executor  was  not 
bound  or  authorised  to  interfere  with  the  widow  in  the  investment  and 
management  of  the  fund. 

'Where  there  were  two  persons  of  the  same  name,  mentioned  in  a  will,  the 
one  a  grand-daughter,  to  whom  a  small  legacy  was  given,  and  the  other  a 
daughter,  to  whom  &  larger  portion  is  given  in  a  clause  with  two  others, 
daughters,  it  was  hdd  that  the  daughter  was  meant  in  such  bequest. 


JUNE  TEEM,  1861.  225 

Ballantyne  v.  Turner. 

A  wish  expressed  at  tlie  conclusion  of  a  will,  that  if  the  testator  had  not  pro- 
vided his  wife  with  a  plentiful  support,  she  was  to  have  enough  of  the  in- 
terest of  his  money  to  make  her  such  plentiful  support,  was  held  too 
vague  and  indefinite  to  impose  any  duty  on  the  executor. 

Interest,  on  a  legacy,  as  a  general  rule,  is  only  chargeable  from  the  time  the 
legacy  is  ordered  to  be  paid. 

Cause  removed  from  the  Court  of  Equity  of  Wake  county. 

The  bill  is  hied  by  the  executor  of  Augustine  Turner,  pray- 
ing the  Court  for  a  construction  of  certain  clauses  in  the  will, 
and  stating  that  there  are  conflicting  claims  set  up  by  the  dif- 
ferent legatees,  an  erroneous  decision  of  which,  on  his  part, 
might  subject  him  to  great  pecuniary  loss. 

The  first  question  presented  to  the  Court  is,  whether  the 
executor  is  responsible  under  a  clause  directing  his  wife  "  to 
put  the  balance  of  his  mone}^  into  safe  hands  and  take  securi- 
ty for  ihe  benefit  of  his  children  hereafter  named,"  or  wheth- 
er the  wife  was  to  be  the  sole  judge  of  the  sufliciency  of  the 
security  taken  by  her. 

.The  second  and  third  questions,  for  the  reasons  stated  by 
the  Court,  are  immaterial. 

The  -ith  question  arises  on  this  clause,  "  My  will  is,  that 
my  executor  give  my  grand-son,  Augustine  Perry,  when  he 
becomes  of  age,  or  put  in  a  guardian's  hands  for  his  benefit, 
the  sum  of  one  thousand  dollars,  *  *  *  and  after  my  said 
wife's  death  or  marriage,  I  wish  the  executors  to  sell  all  the 
property  loaned  to  my  wife  and  not  heretofore  given  away,  and 
equally  divide  it  between  Mary  Turner,  Cynthia  Perry  and 
Nancy  Turner,  except  that  my  will  is  that  Cynthia  Perry 
have  81000  less  of  the  amount  of  property,  sold  at  my  wife's 
death,  than  Mar^^  Turner  and  Xancy  Turner,  on  account  of  the 
thousand  dollars  given  to  Augustine  Perry."  The  executor 
seeks  to  know  at  what  time  tliis  ou«  thousand  dollars  becomes 
payable  to  Augustine  Perry,  whether  it  goes  at  once  into  the 
hands  of  the  guardian,  or  whether  it  is  to  be  postponed  until 
he  arrives  at  age,  or  at  the  death  of  his  grand-mother,  and 
whether  the  said  legacy  bears  interest.  The  said  Augustine 
Perry  had  lived  with,  and  been  supported  by,  his  own  father, 


226  IN  THE  SUPREME  COURT. 


Ballantyne  v.  Turner. 


and  bad  never  been  under  the  chai'ge  of  Ms  grand-father.  In 
the  former  part  of  the  will,  the  sum  of  i§400  per  annum  is 
given  to  his  wife,  during  her  life,  to  be  derived  from  the  in- 
terest of  his  money,  and  it  is  alleged  in  the  bill,  that  after  the 
payment  of  debts  and  specific  legacies,  there  will  not  be 
enough  of  money  left  to  pay  the  annuity  of  $400,  and  the  said 
thousand  dollars  to  Augustine  Perry,  if  it  becomes  payable 
before  her  death  ;  and  another  question  is,  what  shall  be  done 
in  case  this  conflict  occurs. 

The  5th  question  arises,  upon  the  fact,  that  there  are  two 
persons  by  the  name  of  Nancy  Turner,  mentioned  in  the  tes- 
tator's will,  to  wit,  a  daughter  and  a  grand-daughter,  the 
daughter  of  his  son,  Henry  Turner,  to  whom  he  gives  $500, 
and  a  daughter,  Nancy  Turner,  mentioned  in  the  before  recited 
clause.  The  executor  desires  to  know  whether  this  legacy  is 
void,  for  the  ambiguity,  or  to  which  individual,  of  that  name, 
he  is  to  pay  the  mone}^,  arising  from  the  sale  as  aforesaid  or- 
dered. 

6th.  The  testator,  in  his  will,  requires  that  a  certain  negro, 
given  to  one  of  his  daughters,  Mrs.  Avery,  shall  be  returned 
to  his  estate,  if  she  should  die  "  without  a  bodily  heir,"  and 
be  sold,  and  the  proceeds  divided  among  his  living  children. 
The  executor  desires  to  know  when  this  legacy  will  become 
vested,  and  how  soon  after  the  contingency,  referred  to,  will 
it  be  his  duty  to  make  the  contemplated  sale. 
'  At  the  close  of  the  will,  are  these  words :  "  If  I  have  not 
given  my  wife  a  plentiful  support,  she  is  to  have  enough  of 
the  interest  of  said  money  to  make  her  a  plentiful  support." 
The  executor  desires  to  know  whether  he  is  to  judge  whether 
the  provisions  of  the  will  are  sufhcient,  or  whether  he  will  be- 
held responsible  for  the  fulfilment  of  this  clause. 

K.  P.  Battle^  for  the  plaintiff. 

No  counsel  for  the  defendants  in  this  Court. 

Battle,  J.  The  bill  is  filed  by  the  plaintiff  as  the  execu- 
tor of  Augustine  Turner,  dec'd,  for  the  purpose  of  obtaining  the 


JUNE  TEEM,  1861.  227 

a _^ _ 

Ballantyne  v.  Turner. 

advice  and  direction  of  the  Conrt  as  to  the  proper  construc- 
tion of  his  testator's  will,  and  the  management  of  his  estate. 
To  such  of  tlie  enquiries  as  it  is  necessary  for  us  to  respond, 
at  the  present  time,  we  will  give  answers  in  the  order  in  which 
the  questions  are  put : 

1.  We  lind  nothing  in  the  will  which  requires  the'exccutor 
to  interfere  with  the  widow  in  the  investment  and  manage- 
ment of  the  balance  of  the  money  mentioned  in  the  7th 
clause.  The  testator  having  entrusted  her  with  that  business, 
she  must  be  the  exclusive  judge  of  the  sufficiency  of  the  se- 
curity upon  which  the  loans  are  to  be  made. 

2  and  3.  We  cannot  discover  any  interest  which  the  execu- 
tor has  in  knowing  what  estate  the  respective  husbands  of 
Winifred  Aver}'  and  Martha  Spence  take  in  the  slaves  given 
to  their  wives.  He  is  not  constituted,  by  the  M'ill,  a  trustee 
for  i\\e femes  covert,  nor  are  the  slaves  given  for  their  sepa- 
rate use. 

4.  The  legacy  of  $1,000  to  the  testator's  grandson,  Augus- 
tine Perry,  is,  upon  a  proper  construction  of  the  diffei-ent 
clauses  of  the  will  relating  to  it,  made  payable  to  him  either 
upon  his  coming  of  full  age,  or  at  the  death  of  his  grandmo- 
mother,  should  she  die  before  he  arrives  at  that  age.  The 
testator  first  directs  his  executor  to  pay  it  to  him  "  when  he 
becomes  of  age,"  but  he  immediately  adds  "  or  put  in  a  guar- 
dian's hands  for  his  benefit,"  which  seems  to  be  inconsistent 
■with  the  first  direction  ;  this,  however,  is  explained  by  the 
clause  which,  after  ordering  a  sale  at  the  widow's  death,  of 
the  property  given  her  for  life,  directs  the  proceeds  to  be 
equally  divided  between  the  testator's  three  daughters,  Mary 
Turner,  Cynthia  Perry,  and  Nancy  Turner ;  with  the  excep- 
tion that  Cynthia  is  to  have  $1000  less  than  the  other  two,  on 
account  of  that  sum  being  given  to  her  son,  Augustine.  This 
is  a  clear  indication  that  the  latter  is  to  have  his  legacy  before 
he  comes  of  age,  provided  his  grand-mother  dies  before  that 
time,  and,  in  that  event,  the  money  must  be  paid  to  his  guar- 
dian as  directed  by  the  will.  As  it  does  not  appear  from  the 
will  that  the  testator  was  standing  in  loco pa/reniis  to  his  grand- 

4 


228  IJST  THE  SUPREME  COURT. 

« 

Ballantyne  v.  Turner. 

son,  and  as  it  does  appear  from  the  bill  that  the  grandson  had 
always  lived  with,  and  been  supported  by  his  ov\'u  father,  the 
legacy  will,  according  to  the  general  rule,  bear  interest  only 
from  the  time  when  it  becomes  payable  ;  llarrall  v.  Daven^port, 
5  Jones'  Eq.  4.  The  legatee  is  stated  to  be  only  eight  years 
of  age,  and  as  the  interest  on  his  legacy  cannot  commence 
before  his  arrival  at  full  age,  or  the  death  of  his  grand-moth- 
er, we  are  not  informed  that  it  can  interfere  with  the  annuity 
of  $400  given  to  her,  and  it  is,  therefore,  unnecessary  for  us 
to  speculate  upon  the  effect  which  might  have  resulted  from 
a  collision  between  that  annuity  and  the  immediate  payment 
of  the  legacy,  or  of  interest  upon  it. 

6.  The  proceeds  of  the  sale  of  the  property  given  to  the 
widow  for  life,  are,  at  her  death,  to  be  equally  divided  "be- 
tween Mary  Turner,  Cynthia  Perry,  and  jS^ancy  Turner,"  and 
the  testator  has  mentioned,  in  his  Vv'ill,  two  persons  of  the 
name  of  Kancy  Turner,  one  of  whom  is  his  daughter,  and  the 
other  his  grandaughter,  and  the  question  is,  whether  the  leg- 
acy is  void  because  of  a  patent  ambiguity?  The  answer  is, 
that  if  there  were  a  patent  ambiguity,  the  legacy  would  be 
void,  but  the  ajjpareut  difficulty  is  removed  by  the  fact  that 
in  the  bequest  under  consideration,  !N^ancy  Turner  is  named 
in  connection  v;ith  the  testator's  daughters,  Mary  Turner  and 
Cynthia  Perr}^,  which  makes  it  manifest  that  the  legatee  spo- 
ken of,  is  the  daugiitcr,  and  not  the  grandaughter  of  the  tes- 
tator, and  the  maxim,  nosciiur  a  sogus,  gives  the  legacy  to 
her. 

6.  It  is  very  doubtful  whether  the  female  slave  lent  to  the 
testator's  daughter,  Winifred  Avery,  will,  under  the  limitation 
contained  in  the  will,  ever  return  to  and  become,  again,  a 
part  of  his  estate,  but  if  she  should,  it  will  tlien  be  the  proper 
time  to  decide  what  will  be  done  with  her. 

7.  The  widow  not  having  shown  any  dissatisfaction  with  the 
express  provision  made  for  her  by  her  husband's  will,  by  dis- 
senting from  it,  cannot  claim  any  additional  support  under  the 
general  terms  which  he  uses  in  the  latter  part  of  it.  Such 
terms  are  too  vague  and  indefinite  to  be  carried  into  effect  by 


JUNE  TERM,  1861.  229 

Richardson  v.  Godwin. 

a  judicial  sentence.     See  Faribwiilt  v.  Taylor^  5  Jones'  Eq. 
219. 

A  decree  drawn  in  accordance  with  the  principles  announc- 
ed in  this  opinion,  will  probably  enable  the  plaintiff  to  settle 
the  estate  of  his  testator  without  further  difficult3^  The  costs 
will  be  paid  out  of  the  estate. 

Pee  CuRiA:\r,  Decree  accordingly. 


JOr^N  A.  RICHARDSON  against  BERRY  GODWIN. 

Where  an  insut'ficient  description  was  given  in  a  bond  to  make  title,  parol  ev- 
idence cannot  be  resorted  to  to  show  wliat  the  parties  meant,  or  to  identi- 
fy the  particular  parcel  of  laud  which  was  the  subject  matter  of  the  written 
contract. 

Where  an  obligee  in  a  bond  to  make  title,  files  a  bill  for  a  specific  perform- 
ance of  the  contract,  and  claims  to  have  the  land  couvej'ed  according  to 
certfiin  boundaries  which  he  alleges  were  meant  bj'  the  contract,  and  the 
defendant  in  his  answer  denies  that  such  boundaries  were  meant,  and  sets 
qut  others  which  he  alleges  were  intended,  the  plaintiff^  not  having  in  the 
pleadings  averred  his  uuwiUingness  to  accept  a  deed  according  to  the  lines 
as  the  defendant  says  he  Understood  they  were  to  be  run,  and  not  having 
offered  to  release  him  against  any  further  claim,  is  not  entitled  to  a  decree 
according  to  the  allegations  of  the  defendant. 

Cause  removed  from  the  Court  of  Equity  of  Robeson  county. 

The  bill  was  filed  by  the  plaintiff,  to  enforce  a  specific  per- 
formance of  a  contract  in  writing,  for  the  conveyance  of  a 
certain  parcel  of  land  according  to  particular  lines  which  are 
set  forth  in  the  bill,  and  plaintiff  avers  were  the  lines  intend- 
ed by  the  agreement.  The  land  in  question,  was  part  of  a 
tract  of  some  four  thousand  acres  which  was  owned  by  the 
plaintiff,  and  the  contract  is  for  the  conveyance  of  a  part 
thereof,  supposed  to  be  about  fourteen  hundred  acres,  "  the 
location  of  which  will  more  fully  appear  by  reference  to  a 
certain  plat  now  in  the  hands  of  Berry  Godwin,  made  by  Eli 


230  m  THE  SUPKEME  COURT. 

Richardson  v.  Godwin. 

"Wishart,"  which  plat  is  made  a  part  of  the  plaintiff's  bill. — 
The  plat  in  question,  exhibits  three  lines  drawn  across  the 
body  of  the  land,  two  of  which  the  plaintiff  alleges  were 
drawn  by  Eli  Wishart,  and  the  one  which  is  east  of  the  other, 
he  contends  was  meant  by  the  parties,  and  he  prays  that  the 
defendant  may  be  compelled  to  convey  according  to  that 
boundary. 

The  defendant  in  his  answer,  says  that  when  the  plaintiff 
and  himself  entered  into  the  contract  set  out,  (which  he  does 
not  deny)  they  drew  a  third  line  on  the  plat,  formerly  made 
by  Wishart,  which  is  still  more  easterly,  and  that  that  was  the 
line,  according  to  which  the  land  was  to  be  conveyed,  and  ac- 
cording to  which,  he  says  he  had  always  been  ready  and  will- 
ing to  convey,  but  had  not  done  so  because  of  tlie  unreasona- 
ble and  unjust  claim  set  up  by  the  ])laintitf,  to  have  the  land 
conveyed  according  to  the  middle  line. 

There  were  proofs  taken  on  both  sides,  as  to  the  acts  and 
declarations  of  the  parties,  in  resj  ect  to  the  line  intended,  but 
being  pronounced  by  the  Court  inadmissible  to  control  the 
meaning  of  the  bond,  they  are  not  deemed  proper  to  be  re- 
ported. 

The  plaintiff  contended  on  the  argument,  that  he  was,  at 
least,  entitled  to  have  a  conveyance  according  to  the  allega- 
tions of  the  defendant,  and  proposed  ore  tenus,  to  take  a  de- 
cree on  these  terms,  if  the  Court  were  of  opinion  that  he  had 
not  established  his  equity  according  to  his  own  allegations 
and  proofs. 

Zeifch,  for  the  plaintiff. 
Person^  for  the  defendant. 

Peajrson,  C.  J.  A  specific  performance  of  the  contract 
cannot  be  decreed,  becaase  it  is  not  practicable  ',  by  reason  of 
the  vague  and  indefinite  description  of  the  parcel  of  land 
concerning  which  the  contract  was  made.  It  is  settled  that 
where  an  insufficient  description  is  given,  parol  evidence  is  ' 
not  admissible  to  show  what  the  parties  meant,  or  to  identify 
the  particular  parcel  of  laud  which  was  the  subject  matter  of 


JUNE  TERM,  1861.  231 


White  V.  Butcher. 


the  written  contract.  This  must  be  done  by  the  terms  of  the 
contract,  and  an  insufficient  deBcription  cannot  be  added  to  or 
heli>ed  out  by  parol  proof  of  what  was  said  before,  at  the 
time,  or  after  the  written  contract  was  executed;  Murdock  v. 
Anderson^  4  Jones'  Eq.  77 ;  Allen  v.  CJmTnhers,  4  Ired.  Eq. 
125. 

Whether  the  plaintiff  is  entitled  to  a  specific  performance, 
according  to  the  contract,  as  the  defendant  in  his  answer  says 
the  lifie  ought  to  run,  is  a  question  not  presented  by  the  plead- 
ings. In  order  to  raise  it,  the  plaintiff  must  aver  that  he  is 
willing,  and  has  oftered  to  accept  a  deed  for  the  land  accord- 
ing to  the  line,  as  the  defendant  says  he  understood  it  was  to 
be  run,  and  that  lie,  the  plaintiff,  has  offered  to  perform  his 
part  of  the  contract  as  it  was  understood  to  be  by  the  defend- 
ant ;  and  to  release  and  acquit  him  of  all  furthei'  claim.  The 
bill  is  dismissed  with  costs,  but  without  prejudice. 

Pee  Cueiam,  Bill  dismissed. 


JOSEPH  WHITE  AND  OTHERS   aqaimt  WILLIAJkl  S.  BUTCHER 
AND  OTHERS. 

The  maxim,  that  Equity  will  not  enforce  the  specific  performance  of  an  agree- 
ment, upon  which  an  action  will  not  lie,  at  Law,  for  damages,  never  meant 
more  than  that  the  contract  must  be  such  as  the  law  would  have  recognis- 
ed, if  sued  on  in  proper  time  and  under  proper  circumstances. 

One  who  has  executed  a  bond  to  make  title  to  land,  has  no  right  to  insist,  in 
a  suit  for  a  specific  pei'forniauce,  that  the  defendant  had  abandoned  his 
right  to  relief,  while  he  still  holds  the  bonds  given  for  the  purchase-money, 
and  has  never  made  an  ofler  to  surrender  them  to  his  vendee. 

Cai'se  removed  from  the  Court  of  Equity  of  Surry  county. 

The  bill  was  filed  for  the  specific  performance  of  a  contract, 
in  writing,  executed  by  the  defendant,  Butcher,  in  the  year 
1851,  in  which  the  defendant  binds  himself  in  a  penalty,  and 


232  IN  THE  SUPEEME  COUET. 

White  V.  Butcher. 

after  reciting  that  three  several  bonds  had  been  executed  by 
the  plaintiff  as  the  price  of  the  land,  therein  described,  which 
fell  due  at  three  several  dates,  it  is  provided  as  follows  : 
"Now,  if  the  said  Joseph  White  shall  pav  off  the  said  bonds 
as  they  fall  due ;  then,  when  the  last  of  the  said  pa^^inents 
shall  be  paid,  the  said  William  S.  Butcher  shall  personally,  or 
by  his  agent,  or  attorney,  execute  to  the  said  Joseph  White, 
his  heirs  or  assigns,  a  good  and  sufficient  title-deed  in  fee  sim- 
ple." The  bill  was  filed  in  the  fall  of  1857,  and  alleged  the 
payment  of  one  of  the  said  bonds,  and  that  the  defendant, 
Batcher,  had  conveyed  the  land  to  the  defendant,  Holderlield, 
and  that  he,  Holdei-field,  had  covenanted  to  convey  tiie  same 
to  the  defendant,  Pilson,  both  of  whom  had  notice  of  the  i>lain- 
tiffs'  equitable  claim.  The  bill  alleges  that  shortly  before 
bringing  the  suit,  he  tendered  the  purchase-mone}',  agreed  to 
be  paid,  with  interest  thereon,  to  the  defendant,  IIolderfiekK 
who  was  the  attorney,  in  fact,  of  Butcher,  but  that  he  not  on- 
ly refused  to  accept  the  same,  but  hurried  a  messenger  to  the 
State  of  Missouri,  where  Butcher  lived,  and  procured  from 
him  a  deed  for  the  premises  to  himself  (Ilolderfield.) 

The  defendants,  Ilolderfield  and  Pilson,  answered,  alleging 
that  the  plaintiff  had  only  paid  a  part  of  the  first  bond,  and 
had  then  left  the  Slate  insolvent,  and  had  abandoned  all  idea 
of  insisting,  on  his  purchase,  and  that  thougli  he  subsequently 
returned,  he  still  had  no  idea  of  insisting  on  the  fulfillment  of 
this  contract,  until  he  was  urged  to  do  so  by  another  person, 
who  enabled  him  to  raise  the  money  which  was  tendered. 
The  other  material  allegations  of  the  bill,  are  admitted  by  the 
answers.     The  bill  was  taken  pro  confesso  as  to  Butcher. 

There  was  I'eplication  and  comissions  and  proofs  were 
taken,  and  the  cause  being  set  down  for  hearing,  was  sent  to 
this  Court. 

Barher  and  AlithclJ.,  for  the  plaintiffs. 
Boy  den,  for  the  defendants. 

Battle,  J.     It  is  admitted  bv  the  counsel  for  the  defend- 


JUNE  TERM,  1861.  233 

White  V.  Rutcher. 

ants,  that  the  plaintiff,  Joseph  White,  had,  at  one  time,  the 
right  to  the  spcciiic  performance  of  the  contract,  mentioned 
in  the  pleadings,  but  he  contends  that  such  right  cannot  now 
bfe  enforced,  for  two  reasons: 

First.  Becanse  no  action,  at  law,  torecover  damages  would 
now  lie  upon  it ;  and 

-  Secondly.  Because  the  right  to  enforce  the  contract  in 
Equity,  had  been  so  acted  uj)on  by  the  plaintifi'  as  to  justify 
the  defendants  in  treating  it  as  abandoned. 

1.  The  lirst  ground  of  objection  is  clearly  untenable.  It  is 
true,  there  is  a  maxim,  that  Equity  will  not  enforce  the  specific 
performance  of  an  agreement,  upon  whicli  an  action  will  not 
lie  at  Law  for  damages  ;  and,  anciently,  it  was  the  practice  to 
send  the  party  to  Law,  there  to  establish  the  validity  of  the  con- 
tract, before  he  was  allowed  to  proceed  in  Equity.  That  prac- 
tice has  fallen  into  disuse,  and  the  maxim  never  meant  more 
than  that  the  contract  must  be  such  as  the  law  would  have 
recognised,  if  sued  uj)on  in  proper  time  and  under  proper  cir- 
cumstances. If  the  rule  were,  that  Equity  would  not  enter- 
tain a  suit  for  the  specific  performance  of  an  agreement,  ex- 
cept where,  at  the  same  instant,  a  suit  might  be  sustained  for 
a  breach  of  it  at  Law  for  damages,  there  would  be  no  gi'ound 
for  the  existence  of  another  well-known  maxim  :  that,  time  is 
not  of  tlie  essence  of  a  contract  in  Equity.  Upon  the  efficacy 
of  this  maxim,  it  often  happens  that  a  i)arty  by  a  neglect  of  a 
strict  compliance  with  his  stipulations  in  a  covenant,  or  other 
contract,  with  regard  to  time,  loses  his  right  to  sue  at  Law, 
while  he  may  yet  have  a  remedy  by  a  suit  for  a  specific  exe- 
cution in  Equity  ;  Wallcer  v.  Allen.,  5  Jones,  58  ;  Falls  v. 
Carpenter^  1  Dev.  and  Bat.  Eq.  237.  Time  may,  indeed,  be 
made  an  essential  part  of  a  contract,  even  in  the  view  of  a 
court  of  equity,  and  in  that  case,  that  court  will  require  its 
observance  as  rigidly  as  a  court  of  law.  The  counsel  for  the 
defendants,  contends  that  the  present  contract  is  one  of  that 
kind,  and,  in  support  of  his  jx^sition,  he  refers  to  the  language 
of  the  bond  for  title:  "Now,  therefore,  if  the  said  Josci)h 
Wiiite  shall  pay  off  the  said  bonds  as  they  fall  due,  then,  when 


234  m  THE  SUPREME  COURT. 

White  V.  Butcher. 

the  last  of  the  said  payments  shall  be  made,  the  said  W.  S. 
Butcher  shall  personally,  or  by  agent,  or  attorney,  execute  to 
the  said  Joseph  White,  a  good  and  sufficient  title-deed  in  fee 
simple."  The  purchase-money,  for  the  land,  was  made  paya- 
ble in  three  instalments,  secured  by  three  several  bonds,  and 
the  counsel  contends  that  the  punctual  payment  of  each,  as  it 
fell  due,  and,  certainly,  the  payment  of  all,  when  the  last  fell 
due,  was  intended  as  an  essential  requisite  to  his  obligation 
to  make  title.  We  cannot  discover  any  sucii  meaning  in  this, 
any  more  than  may  be  found  in  any  other  contract  for  the 
purchase  of  land,  where  the  vendor  stipulates  to  make  title 
when  the  price  shall  have  been  paid.  There  is  no  clause  that 
the  contract  shall  be  void  if  the  purchase-money  be  not  punc- 
tually paid,  and  if  there  were,  it  would  have  been  waived  by 
the  conduct  of  the  vendor  in  recognising  the  existence  of  the 
contract,  and  offering  to  perform  it  after  the  last  bond  fell  due. 

2.  The  second  ground  of  objection,  that  the  contract  of  pur- 
chase was  abandoned  by  the  plaintiff,  or  that  at  least,  that  his 
conduct  in  neglecting,  for  so  long  a  time  to  fulfill  it,  taken  iu 
connection  with  his  leaving  the  State  and  his  insolvency,  jus- 
tified the  defendants  in  treating  it  as  abandoned.  It  is  mani- 
fest, from  the  testimony  of  Mr.  Dobson,  that  the  plaintiff 
never  intended  to  abandon  the  purchase,  and  although  he 
acted  in  such  a  manner  as  would  have  justified  the  defend- 
ants' in  taking  the  proper  steps  to  enforce  either  its  prompt 
execution  or  its  abandoment,  yet,  no  such  steps  weie  taken, 
and  the  plaintiffs  claim  to  equitable  relief  still  remains.  The 
bonds  which  the  plaintiff  gave  to  secure  the  purchase-money, 
were  never  surrendered,  nor  offered  to  be  sun-endered  to  him, 
and  the  defendants  had  no  right,  while  retaining  them,  to 
consider  and  treat  the  contract  as  being  at  an  end.  Their 
omission  to  adopt  that  course,  is  fatal  to  tlieir  defense  ;  see 
I^alls  V.  Ga/'j)enter,  uhi  supra,  and  /Sur/(/  v.  Stoive,  5  Jones' 
Equity,  126. 

There  must  be  a  decree  that  the  defendant,  Ilolderfield,  who 
obtained  the  title  from  the  defendant,  Butcher,  after  notice  of 
the  plaintiffs'  claim,  must  make  title  upon  the  payment  of 


JUNE  TERM,  1861.  235 


McWilliams  v.  Falcon. 


tlie  pnrchase-money,  with  interest,  after  deducting  the  rents  ; 
as  to  which,  there  must  be  an  account,  if  the  parties  desire  it. 

Pkk  Curiam,  Decree  according!}'. 


FREDERICK  N.  McWILLIAMS  Krr  acjainsi  J.  N.  FALCON  AND 
OTHERS. 

Where  money  is  given  by  will,  as  a  portiuii  to  a  child,  or  to  one  to  whom  the 
the  testator  stood  in  loco  parentis,  or  for  whose  support  it  was  intended  to 
make  a  provision,  or  where  the  legacy  is  demonstrative,  and  the  fund  is 
productive,  it  was  held  that  the  legatee  is  entitled  to  interest  from  the  death 
of  the  testator. 

Cause  removed  from  the  Court  of  Equity  of  Halifax  county. 

The  bill  in  this  case,  was  tiled  by  the  executor  to  the  will 
of  Dudley  Clanton,  setting  fortli  that  the  said  testator  be- 
queathed his  real  estate  to  be  sold  for  the  payment  of  his  debts, 
and  that  if  that  were  not  sulhcient  for  that  purpose,  his  ])cr- 
sonal  estate  should  be  sold,  and  he  directed  that  he  sliould  sell 
so  much  of  liis  other  personal  estate  as  would  with  tlie  surj)lus 
remaining  after  the  payment  of  his  debts,  be  sufficient  to  raise, 
in  money,  $5000,  to  be  hehl  by  the  executor  as  a  fund  for  the 
benclit  of  the  defendant,  Frances,  the  wife  of  J.  N.  Falcon, 
for  her  sole  and  separate  use.  lie  provided  in  the  said  will 
that  tlie  executor  sht)uld  pay  the  interest  annually  to  the  said 
Frances  during  her  life,  and  if  she  should  become  discovert, 
and  should  need  any  portion  of  the  principal  for  her  comfort, 
tlien  to  pay  to  her  so  much  thereof  as  might  be  requisite  for 
that  purpose  ;  and  after  her  death,  to  pay  what  might  remain 
to  certain  legatees  in  said  will  named.  The  executor  in  his 
bill  states  that  he  had  to  sell  all  the  laud  for  the  payment  of 
the  debts,  and  that  he  then  sold  a  part  of  the  slaves  for  tiie 
payment  of  the  remainder  of  the  debts,  and  for  the  purpose 


23G  IN  THE  SUPREME  COURT. 


Mc Williams  v.  Falcon. 


of  raising  the  fund  in  question ;  tb.at  owing  to  difficulties  rais- 
ed as  to  his  right  to  the  possession  of  the  assets,  and  having 
to  resort  to  the  assertion  of  liis  right  by  suits  iu  court,  the  set- 
tling of  tlie  estate  was  postponed  for  sevei-al  years  from  the 
death  of  the  testator,  to  wit,  about  seven  years  ;  and  the  only 
question  presented  by  the  pleadings,  is  whether  Mrs.  Falcon  is 
entitled  to  have  interest  counted  on  her  legacy,  and  paid  to 
her  for  this  space  of  time. 

The  bill  calls  on  the  persons  next  in  interest  to  interplead, 
and  to  have  the  question  settled  by  a  decree  of  this  Court,  so 
as  to  protect  him. 

Answers  were  filed  by  some  of  the  defendants,  and  a  de- 
iTiuri-er  filed  as  to  Falcon  and  wife,  and  the  cause  removed 
to  this  Court. 

I>.  F.  Moore,  for  the  plaintifi'. 

Dams  and  Batcheloi\  for  tlie  defendants. 

Pearson,  C.  J.  The  general  rule,  according  to  the  English 
authorities,  is  to  allow  a  pecuniary  legatee  interest  after  the 
expiration  of  one  year.  Tliere  are,  however,  many  exceptions. 
Among  others,  where  the  money  is  given  as  a  portion  to  a 
cliild,  or  one  to  M'hom  tlie  testator  stood  in  loco  parentis  ',  or 
for  whose  support  it  was  intended  to  make  provision.  In  such 
cases,  interest  is  allowed  from  the  death  of  the  testator ;  be- 
cause the  object,  i.  e.  to  furnish  means  for  subsistence  does 
not  admit  of  dchiy,  and  the  legatee  sliould  not  be  left  to 
starve.  So,  when  tlie  legacy  is  demonstrative,  and  the  fund 
is  productive ;  for  instance,  notes  bearing  interest,  or  bank 
Btock  paying  dividends,  or  negroes  yielding  hires;  for  the 
amount  of  the  accumulated  interest,  or  dividends,  or  hires, 
certainly  docs  not  belong  to  the  executor  ;  nor  has  the  lega- 
tee to  whom  the  corpus,  (that  is  the  notes,  bank  stock,  or  ne- 
groes) is  given,  any  right  to  it;  nor  should  it  go  to  increase 
the  residuary  fund,  or  be  treated  as  undisposed  of,  and  divi- 
ded among  the  next  of  kin.  Evidently,  there  is  no  principle 
upon  which  either  of  these  parties  can  claim  a  right  to  be 


JUNE  TERM,  1861.  237 

McWilliftms  v.  Falcon. 

benefited  by  the  delay  in  settling  np  the  estate,  and  the  rule 
is  to  consider  the  executor  as  having  acted  as  a  trustee,  and 
to  hold  the  accumulation  for  the  nse  of  the  party  to  whose 
prejudice  the  delay  operated;  under  the  maxim  "Equity 
considers  that  done  M-liich  ought  to  have  been  done,"  and  M-ill 
put  the  party  in  the  same  situation  as  if  it  had  been  done  ; 
Beas^ehj  v.  Knox^  5  Jones'  Eq.  1 ;  Turnage  v.  Turnage^  7  Ired. 
Eq.  I'll.  In  such  cases,  as  interest  is  allowed  on  the  footing 
of  an  accumulation  of  the  fund,  and  not  on  the  ground  tliat 
the  executor  is  guilty  of  laches  in  withholding  nioney  that  he 
ought  to  have  paid,  the  calculation  is  made  from  the  death  of 
tlie  testator,  and  not  from  the  qualiticati<Mi  of  the  execntoi-. 

The  case  under  considci'ation,  falls  witliin  the  princii)le  of 
both  these  exceptions  ;  the  interest  is  to  be  j^aid  to  the  nu^ther 
of  the  testator  "  anouuiUy  for  her  sole  and  separate  use  ;"  so,  it 
\vas  manifestly  the  intention  to  provide  lier  the  means  of  sub- 
sistence. The  legacy  is  demonstrative,  and  the  fund  out  of 
which  it  was  to  be  paid,  to  wit,  the  negroes,  was  productive, 
and  yielded  annual  profits  or  hires,  and  there  is  no  reason  why 
the  mother  of  the  legatee  should  be  subjected  to  loss  because 
of  the  delay  which  has  taken  })lace  in  settling  np  the  estate, 
or  that  any  other  person  should  be  benefited  by  such  delay. 

The  position  taken  in  the  answer:  that  interest  should 
not  be  allowed  until  the  expi'ration  of  two  years  from  the 
qualification  of  the  executor,  is  untenable.  It  is  supposed  to 
be  a  eorollary  from  the  act  of  1789.  That  act  was  intended 
to  remedy  the  evil  of  a  delay  on  the  part  of  executors  and 
administrators  in  settling  np  estates,  on  the  pretext  of  out- 
standing debts,  and  it  I'equiros  them  to  settle  up  and  pay  over 
the  assets  to  the  legatees  and  distributees,  at  the  expiration  of 
two  years  tVom  the  time  of  their  qualification,  taking  refund- 
ing bonds  for  the  benefit  of  such  creditors  as  may  not  have 
been  paid  ;  but  it  is  by  no  means  the  policy  of  the  law  that 
they  should  not  settle  up  sooner,  if  the  condition  of  the  estate 
will  allow  it,  ami  no  inference  or  deduction  from  the  statute. 
is  admissible,  which  would  tend  to  defeat  the  object,  in  aid  of 
which  that  statute  was  passed,  and   to  induce  executors  and 


238^  IN  THE  SUPREME  COURT. 

Lynch  v.  Bitting. 

administrators  to  deUi}''  making  a  settlement  by  exempting 
them  from  the  payment  of  interest  until  after  the  expiration 
of  two  years.  Most  assuredly,  this  result  cannot  be  allowed 
where  the  intention  is  to  provide  the  means  for  the  subsist- 
ence of  the  object  of  the  testator's  bounty,  or  the  amount  is 
charged  on  a  productive  fund. 

Per  Curiam,  There  will  be  a  decree  declaring  that  the 
legatee  is  entitled  to  interest  from  the  death 
of  the  testator. 


LA.RKIN  LYNCH  against  JOSEPH  A.  BITTING. 

Where  it  appeared  that  during  a  copartnership  of  eight  years  duration,  there 
had  been  occasional  calculations  of  interest  and  summing  np  of  results  and 
a  division  of  profits,  but  no  surrender  of  vouchers  or  cancellation  of  books, 
nor  release,  nor  receipt  in  full,  it  was  held  that  the  transactions  were  not 
of  such  a  conclusive  nature  as  to  bar  an  account. 

Cause  removed  from  the  Court  of  Eqnit}^  of  Yadkin  county. 

The  plaintiff  and  d  Pendant  had  been  partners  in  the  busi- 
ness of  buying  and  selling  slaves  from  the  year  18-i7  to  1855, 
during  which  time,  large  profits  were  realised  from  the  busi- 
ness, amounting  in  the  latter  years  of  its  continuance,  to  as 
much  as  twelve  thousand  dollars.  The  plaintiff  was  the  more 
active  partner  in  buying  and  selling,  and  the  defendant  kept 
the  books,  in  which  their  dealings  were  entered.  It  appear- 
ed that  the  entries  were  mosth'  made  at  the  dictation  of  the 
plaintiff  and  at  stated  periods,  generally  once  a  year,  the 
plaintiff  and  defendant  together  made  calculations  of  interest 
upon  the  entries  and  divided  the  profits  according  to  the 
terms  of  their  copartnership,  that  is,  equally.  Sometimes  er- 
rors in  former  computations  were  detected  and  corrected  in 


JUNE  TEEM,  1861.  239 

Lynch  V.  Bitting. 

their  subsequent  ones.  The  defendant  insists,  by  his  answer, 
that  a  full,  fair  and  conchisive  settlement  took  place  between 
the  parties  np  to  April,  1857,  and  that  each  party  tlien  re- 
ceived his  share  of  the  profits  then  on  hand.  Afterwards,  in 
1858,  it  appears  that  there  had  been  collected  some  small 
debts,  due  the  concern,  which  were  accounted  for  between 
the  partners,  and  a  loss  of  a  debt,  by  the  failure  of  an  attor- 
ney in  Georgia,  also  accounted  for  and  divided  between  them. 
There  was  also,  at  this  time,  a  rectification  of  the  account  and 
settlement  of  ]85T.  The  answer  sets  forth  the  book  contain- 
ing their  dealings,  and  insists  that  at  each  of  these  computa- 
tions of  interest  and  divisions  of  profits,  there  was  intended  to 
be,  and  in  fact  was,  a  full  and  final  settlement  of  all  previous  naat- 
ters,  and  especially,  was  the  settlement  of  1857  thus  final  and 
conclusive,  and  he  relies  upon  the  same  as  a  bar  to  a  further 
investigation  of  the  dealings  of  the  partnership. 

There  was  some  testimony  taken,  and  the  cause  set  down 
on  the  bill,  answer,  exhibits  and  proofs,  and  sent  to  this  Court 
by  consent. 

Cleme7it,  for  the  plaintiff. 

Bo>jden  and  2Iitchell^  for  the  defendant. 

Manly,  J.  The  parties  to  this  suit  were  partners  in  buy- 
ing and  selling  slaves  from  181-7  to  1855,  and  the  bill  is  filed 
for  an  account  and  settlement  of  the  partnership  dealings. 
The  objection  brought  forward  in  the  answer  to  the  account 
asked  for,  is,  that  there  has  already  been  an  account  stated 
between  the  parties,  and  a  settlement  in  pursuance  of  it. 

The  courts  are  averse  to  unravelling  accounts  that  have 
once  been  settled  between  parties  competent  to  deal  with 
with  each  other,  and  hence,  it  is  a  fixed  rule  not  to  do  so, 
where  the  accounts  have  been  com;)lete — freely  assented  to 
and  nuide  the  basis  of  a  settlement  (except  in  the  case  of  bills 
surcharging  and  falsifying).  As  evidence  of  the  required 
conclusiveness  of  a  settlement  to  bar  an  account,  it  is  usual  in 
the  plea  to  aver  a  surrender  of  vouchers.     Between  the  par- 


240  m  THE  SUPREME  COURT. 

Attorney  General  v  Pierce. 

ties  before  lis,  there  has  been  no  change  of  the  custody  of 
papers  —  no  cancelhition  of  books — nor  release  —  nor  re- 
ceipt in  full,  and,  upon  the  wliole,  we  are  not  satisfied,  upon 
an  examination  of  the  testimony,  that  any  account  has  ever 
been  stated  and  conclusively  agreed  upon  by  the  parties. 
There  has  been  an  occasional  calculation  of  interest  and  sum- 
ming up  of  results  as  they  appeared  upon  the  books  of  the 
partnership  and  a  division  of  profit  balances ;  but  inasmuch 
as  there  has  been  no  Jl)ial  account  at  any  time  stated  between 
them,  our  inference  is,  that  none  of  the  transactions  referred 
to,  were  considered  conclusive,  even  as  to  tlie  matters  em- 
braced, but  mere  stages  in  their  books  to  guide  them  in  par- 
*  tial  settlements.  We  find  the  parties  rectifying  the  settle- 
ment of  April,  1S57,  (the  one  insisted  upon  as  conclusive)  and 
we  find  them  again  accounting  together  in  April,  1858,  and 
dividing  the  balance.  In  the  present  state  of  the  case,  we  do 
not  enter  into  the  matters  of  controversy  between  the  parties; 
we  hold,  simply,  that  what  appears  to  us  in  this  case,  that  is, 
the  striking  of  balances,  from  time  to  time,  upon  the  partner- 
ship books,  to  aid  in  making  a  partial  division  of  effects,  is 
not  such  an  accounting  together  as  will  bar  a  bill  for  a  full  ac- 
count of  partnership  transactions. 

Per  Curiam,  Decree  for  an  account. 


ATTORNEY  GENERAL  against  WILLIAM  H.  PIERCE,  Executor. 

A  legacy  in  remainder  to  collateral  kindredj  is  liable  to  the  tax  imposed  by 
the  act  of  1846,  chap.  72,  and  the  proper  mode  of  suing  for  such  tax  is  by 
a  bill  in  equity,  in  the  nature  of  an  information,  in  the  name  of  the  Attor- 
ney General. 

Cause  removed  from  the  Court  of  Equity  of  Craven  county. 

This  is  a  bill,  in  the  nature  of  an  information,  alleging  that 
Stephen  Pierce  died  in  the  county  of  Craven  in  1849,  having 


JUNE  TERM,  1861.  241 


Attorney  Genc;ral  v.  Pierce. 


bequeathed  considerable  estate,  consisting  of  lands,  slaves, 
money  and  choses  in  action,  to  bis  brothers,  subject  to  a  life- 
interest  therein  to  his  mother ;  that  the  amount  in  value  of 
said  estate  is  $20,000  ;  that  the  deiendant  is  nominated  in  the 
said  will  as  executor,  and  as  such,  responsible  for  the  tax  im- 
posed thereon  by  the  revenue  law  of  the  State.  The  prayer 
is,  that  the  said  executor  be  decreed  to  pay  the  said  tax. 

The  answer  of  the  defendant  admits  the  material  facts,  set 
out  in  the  information,  but  contends  that  the  legacies,  set  out 
in  the  bill,  being  interests  in  remainder,  arc  not  liable  to  the 
tax  imposed  by  the  statute  law  of  the  State  ;  but,  at  any  rate, 
if  so  liable,  the  tax  does  not  attach  upon  the  r,aid  interests, 
until  after  they  come  to  the  legatees  in  possession.  lie  also 
objects,  that  by  the  act  of  1858,  the  bill  should  have  been  filed 
in  the  name  of  the  State. 

The  cause  was  set  for  hearing  on  bill  and  answer,  and  trans- 
mitted. 

■Henry  C.  Jones^  for  the  plaintiff. 
Green,  for  the  defendant. 

Battle,  J.  This  is  an  information,  in  the  name  of  the  At- 
torney General,  filed  for  the  purpose  of  recovering  from  the 
defendant,  as  the  executor  of  Stephen  J.  Pierce,  the  tax  on 
legacies  to  collateral  kindred,  imposed  by  the  act  of  1846, 
chapter  72.  The  defendant,  in  his  answer,  sets  up  two  objec- 
tions to  the  claim,  one  of  which  goes  to  its  merits,  and  the 
other,  only  to  the  form  of  the  remedy. 

1st.  The  first  objection  is,  that  the  tax,  specified  in  the  act 
referred  to,  does  not  attach  to  the  legacy  in  question,  because 
it  is  the  bequest  of  a  remainder,  after  a  life-estate  given  to  the 
mother  of  the  testator ;  or  if  it  do  attach  to  the  legacy,  it  is 
not  to  be  paid  until  the  property  comes  into  possession  upon 
the  death  of  the  tenant  for  life.  The  objection,  in  either  form 
of  it,  is  untenable.  The  words  of  the  act  are  sufticiently  exten- 
sive to  embrace  such  a  legacy,  and  the  manner  in  which  the 
executor  is  directed  to  account  for  and  i)ay  over,  the  tax  by 


242  IN  THE  SUPREME  COURT. 


Hill  V.  Williams. 


the  4th  section,  shows  that  it  is  due  immediately.  The  be- 
quest of  a  remainder  in  slaves,  or  the  specified  articles,  will, 
of  course,  be  of  less  value  than  the  M'hole  interest  in  such 
slaves  or  other  cliattels,  but  it  will  have  some  immediate 
value,  and  that  can  be  ascertained  in  the  mode  pointed  out 
by  the  act  of  IS-IS,  chap.  81,  for  assessing  the  value  of  slaves 
and  other  specific  personal  estate  given  by  will  to  collateral 
kindred. 

The  2nd  objection,  is  to  the  form  of  the  suit,  the  defendant 
insisting  the  bill  ought  to  have  been  Hied  in  the  name  of 
the  State,  as  is  expressly  required  by  the  act  of  1858,  ch.  25, 
sec.  80.  The  answer  is,  that  the  114th  section  of  the  latter  act, 
excepts  from  its  operation  taxes  due  under  the  provisions  of 
any  former  law,  and  the  case  of  the  /State  v.  Brim,  4  Jones' 
Eq.  300,  shows  that  under  such  law,  an  information,  in  the 
name  of  the  Attorney  General,  is  the  most  approved  form  of 
proceeding. 

The  plaintiff  is  entitled  to  a  decree  for  an  account,  and  to 
have  the  amount  of  taxes,  to  which  the  State  is  entitled,  as- 
certained and  paid  in  the  manner  prescribed  by  law. 

Per  Curiam,  Decree  accordingly. 


WHITMEL  J.  HILL,  Adm'r  against  JOSEPH  J.  WILLIAMS. 

An  answer,  when  directly  responsive  to  the  allegations  of  the  bill,  or  to  an 
interrogatory  put  in  the  bill,  or  on  a  special  examination,  is  to  be  taken  as 
true,  unless  it  be  proved  not  to  be  true  by  the  oath  of  two  witnesses,  or  of 
one  witness  with  corroborating  circumstances  equal  to  the  force  of  another 
witness,  or  by  some  other  kind  of  evidence  which  is  entitled  to  the  weight 
»    of  two  witnesses  on  oath. 

Where  one,  on  the  footing  of  a  friend,  neighbor  and  relative,  undertook  to 
manage  the  moneyed  affairs  of  an  old  lady,  without  any  stipulation  as  to 
compensation,  and  without  intending  to  make  any  charge,  it  was  held  that 
he  was  not  entitled,  after  her  death  to  claim  a  remuneration  for  his  services. 


JUNE  TERM,  1861.  .    248 


Hill  V.  Williams. 


and  that  his  being  held  to  a  strict  account  by  her  administrator,  did  not  vary 
the  case. 
Where  an  agent  withheld  the  notes  of  his  principal  from  her  administrator,  which 
notes  were  of  long  standing,  and  large  amounts  of  interest  had  accumula- 
ted, and  being  warned  by  the  admmistrator  that  he  would  be  held  liable  for  in- 
terest on  the  accumulation  unless  he  surrendered  the  notes,  or  had  them 
renewed,  it  was  held  that  he  should  be  made  liable  so  to  account  from  the 
date  of  the  filing  of  the  bill. 

Cause  removed  from  the  Court  of  Equity  of  Halifax  county. 

The  bill  was  filed  by  the  plaintifl",  as  administrator  of  Mrs. 
Temperance  Dawson,  asking  for  an  account  and  settlement  of 
defendant's  agency  in  managing  her  ])lantaf"ion  and  pecuniary 
matters.  It  appeared  from  the  pleadings  and  proofs,  that  Mrs. 
Dawson  had  added  to  her  estate  a  large  property  that  had  for- 
merly belonged  to  her  son,  which  she  purchased  at  a  sale  of  his 
property  under  a  deed  of  trust ;  that  the  whole  of  her  estate  con- 
sisted of  a  large  and  valuable  plantation  and  about  sixty  slaves ; 
that  her  son,  the  former  owner  of  a  part  of  it,  afier  the  sale  of 
it  to  his  mother,  remained  with  her,  and  controlled  and  man- 
aged the  plantation  business  and  money  matters  until  his 
death,  in  1S46,  when  the  defendant,  who  was  a  neighbor  and 
relation,  on  the  footing  of  a  friend,  undertook  the  management 
of  her  affairs.  It  is  alleged  that  the  defendant,  as  the  agent 
of  Mrs.  Dawson,  from  the  time  of  the  death  of  her  son,  up  to 
the  lime  of  her  own  death,  in  1857,  received  the  proceeds  of 
the  crops  made  on  her  farm ;  also,  the  proceeds  of  the  sale  of 
several  slaves  and  other  moneys,  and  invested  the  same,  or  a 
large  part  thereof,  in  the  notes  of  divers  persons,  to  whom  he 
loaned  the  money,  and  agreed,  as  to  such  part  as  was  not  in- 
vested that  he  would  pay  interest  thereon,  and  this  bill  is  filed 
for  a  discovery  of  these  amounts,  and  for  an  account  and  set- 
tlement. Tlie  plaintiff  alleges  that  just  after  the  death  of 
Mre.  Dawson,  there  were  in  the  defendant's  hands  notes  of 
several  years  standing,  on  which  interest  had  accumulated  to 
a  large  amount,  and  that  he  called  the  attention  of  the  defend- 
ant to  tlie  fact  that  this  interest  was  an  unproductive  fund, 
and  desired  the  defendant  to  hand  over  these  notes  to  him, 

5 


244  .  m  THE  SUPREME  COURT. 

Hill  V.  Williams. 

that  he  might  administer  them  in  the  due  course  of  law;  but  that 
the  defendant  refused  to  do  so,  saying  that  he  would  have  the 
notes  renewed.  He  insists  that  the  defendant  shall  pay  inter- 
est on  this  fund  from  the  date  of  such  notification  up  to  the 
time  of  the  decree.  The  plaintiff  also  alleges  that  he  demand- 
ed a  full  settlement  of  the  agency,  which  was  refused  by  the 
defendant,  unless  the  plaintiff  would  agree  to  go  into  such 
settlement  without  time  to  examine  his  counter  claims,  and 
on  other  terms  which  were  unreasonable  and  inadmissable. 
■  The  answer  of  the  defendant  sets  forth  that  on  the  21st  of 
October,  1847,  he  had  a  settlement  with  Mrs.  Dawson  of  ail 
the  charges  which  she  had  against  him,  and  on  that  occasion 
she  fell  in  his  debt  in  the  sum  of  $40.32,  for  which  she  gave 
her  note,  and  he  proffers  to  exhibit  the  said  note.  The  de- 
fendant denies  that  he  agreed  to  take  any  part  of  Mrs.  Daw- 
son's money  and  pay  interest,  but  says  he  always  made  known 
to  her  he  would  not  hold,  keep,  or  use  her  funds  on  these 
terms,  but  would  loan  out  the  same  whenever  he  had  a  safe 
opportunity  of  so  doing.  The  defendant  further  answering, 
says  that  he  furnished  the  said  Temperance,  at  different  times, 
a  list  of  her  notes  in  his  possession,  in  order  to  enable  her  to 
give  in  the  amount  of  interest  for  which  she  was  taxable  un- 
der the  revenue  laws  of  the  State,  one  of  which  he  says  was 
furnished  shortlj'^  before  her  death ;  that  these  papers  had  come 
to  the  possession  of  the  plaintiff,  and  he  prays  that  he  ma}'-  be 
compelled  to  produce  the  same.  The  defendant  states  the 
balance  in  his  hands,  and  proposes  to  pay  over  the  same  to 
the  plaintiff.  He  says  he  has  been  at  great  trouble  and  expense 
in  the  management  of  the  business  undertaken  by  him,  and  . 
he  thinks  he  is  entitled  to  compensation. 

There  was  replication  to  the  answer,  and  b}""  consent  of  par- 
ties, it  was  referred  to  Messrs.  E..  H.  Smith  and  W.  R.  Smith, 
as  commissioners,  to  state  the  account  between  the  parties, 
and  it  was  ordered  that  each  party  have  leave  to  examine  the 
other  on  oath  on  written  interrogatories,  and  that  the  defend- 
ant file  in  the  office  of  the  clerk  and  master,  all  papers  in  his 
possession  relating  to  the  business  affairs  of  T.  W.  Dawson. 


JUNE  TERM,  1861.  245 


Hill  V.  Williams. 


The  commissioners  reported  a  balance  against  the  defendant 
of  $3,200,32.  The  commissioners  set  out  with  a  charge  against 
the  defendant  founded  on  a  paper  which  is  referred  to  as  (1) 
which  is  as  follows : 

PAPER  (1.) 

"  Mrs.  T.  W.  Dawson  has  deposited  in  my  hands,  for  safe 
keeping  the  proceeds  of  her  crops  for  several  years,  with  di- 
rections not  to  loan  it  out,  but  I  have  concluded  it  would  be 
best  to  violate  her  orders,  and  within  the  last  fourteen  months 
I  have  loaned  out  four  thousand  four  hundred  and  fifty-eight 
dollars,  which  1  suppose  she  should  give  in  as  a  part  of  her 
taxable  property.  •  Jos.  J.  Williams. 

July  ISth,  1853." 

This  is  the  basis  of  the  first  item  in  the  account  stated,  which 
is  "1853,  July  18th.  Dr.  the  defendant  to  $4,458."  The  second 
item  is  interest  on  the  same  to  16th  of  April,  18G0,  $1811.43. 
The  next  item  is  dated  June  15th,  1854,  and  is  for  $1000  with 
interest  on  the  same  to  16th  April,  1860,  and  is  based  upon 
the  following 

PAPER  MARKED  (2.) 

"  Add  one  thousand  dollars  to  your  list  of  money  given  in 
last  year  loaned  out.    June,  1854. 

Jos.  Williams." 

The  defendant  excepts  to  these  items,  and  says  that  the  ac- 
count ought  not  to  begin  in  1853,  but  in  July,  1854,  and  that  the 
3d  item  ought  not  to  bear  date  of  June,  1854,  but  of  June,  1855  ; 
and  he  produces  the  following  papers  marked  3  and  4,  to  sub- 
stantiate that  exception  : 

PAI^EK  (3.) 

"  I  hold  in  my  care,  for  Mi-s.  T.  W.  Dawson,  the  following 
notes  of  hand :  one  note  drawn  by  K.  Taylor,  for  $200,  with 
interest  from  8th  day  of  Oct.  1851,  $  200.00 

Do.  S.  Ward,  Bryant  Bennett,  B.  Williams,  for 

$1,412.25,  1.412.25 

Int.  from  12th  June,  1852, 
Do.  Jiryant  Bennett,  for  $759.09.     Int.  from  10th 

Sept.  1853,  759.09 


246  IN  THE  SUPREME  COURT. 


HiJl  V.  Williams. 


Do.  Jordan  &  Howell  note,  $281.41.     Lit.  from 

14th  Oct.  1853,  281.41 

Miles  Davis  and  J.  Upton  note,  $1000.  Int. 
from  20th  Oct.  1853,  1000.00 

A.  &  H.  Harriss,  Norfolk,  $515.11.     Int.  from 

2d  July,  1853,  515.11 


$4,458.77 


4.458.77 
6 

207.52.62  ,  Jos.  J.  Williams. 

PAPER  (4.) 

"  State  of  North  Carolina,  Halifax  county. 

I,  Joseph  H.  Whitaker,  clerk  of  the  Court  of  Pleas  and 
Quarter  Sessions,  for  said  county,  do  hereby  certify  that  on 
examining  the  records  in  my  office,  I  lind  that  Mrs.  Temper- 
ance W.  Dawson  listed  in  the  year  1854,  two  hundred  and 
sixty-eight  dollars  ($268)  in  annual  interest,  and  in  1855,  she 
listed- three  hundred  and  twenty  dollars  ($320,)  and  in  1856, 
she  listed  four  hundred  and  fifty-eight  dollars,  ($458.)  Given 
under  my  hand  this  11th  day  of  April,  1860,"  (Signed  by  the 
clerk.) 

The  defendant  also  files  letters  from  A.  &  H.  Harris,  dated 
in  Sept.  1854,  acknowledging  a  balance  of  upwards  of  $500. 
From  all  which,  he  insists  that  the  error  complained  of,  is  ap- 
parent. 

The  only  other  exception  raising  a  question,  was  one  by  the 
plaintiff,  objecting  to  the  allowance  of  commissions  to  the  de- 
fendant, and  refusing  to  charge  interest  upon  the  interest  ac- 
cumulated in  his  hands,  aud  which  defendant  was  warned 
would  be  insisted  on,  unless  the  notes  were  handed  over  to  the 
administrator,  or  by  himself  renewed. 

These  exceptions  were  set  down  for  argument,  and  heard 
at  this  term. 

B.  F.  Moore,  for  the  plaintiff. 

Badger,  Barnes  and  Conigla/nd,  for  tiie  plaintiff. 


JUNE  TERM,  1861.  M"! 


Hill  V.  Williams. 

Pearson,  C.  J.  The  lirst  exception  of  the  defendant  is  al- 
lowed. The  commissioners  did  not  duly  appreciate  the  tech- 
nical force  which  is  given  to  an  answer  when  directly  respon- 
sive to  the  allegations  of  the  bill,  or  to  an  interrogatory  put 
in  the  bill,  or  on  special  examination.  Such  answer  is  to  be 
taken  as  true  unless  it  be  proven  not  to  be  true  by  the  oaths 
of  two  witnesses,  or  of  one  witness  with  corroborating  circum- 
stances, amounting  to  the  force  of  another  witness;  or  by 
some  other  kind  of  evidence  which  is  entitled  to  the  weight 
of  two  witnesses  on  oath. 

In  this  case  there  was  no  witness,  and  the  plaintiff,  to  dis- 
prove the  auswer,  relied  on  the  evidence  furnished  by  papers 
marked  (1)  and  (2.)  As  an  explanation  of  this  seeming  con- 
ti-adiction,  the  defendant  makes  the  allegation  of  a  mistake  in 
both  of  these  papers  in  respect  to  the  dates,  and  avers  that 
the  proper  date  of  the  paper  marked  (1)  should  be  "  1854," 
instead  of  1853,  and  that  of  the  paper  marked  (2)  "1855" 
instead  of  1854,  aud  to  show  this  mistake,  he  produces  papers 
marked  (3  and  (4.)  By  an  inspection  of  the  papers  marked 
(1)  and  (3)  it  is  manifest  that  the  one  was  made  from  or  with 
a  direct  reference  to  the  other,  aud  taking  into  consideration 
the  fact  that  papers  (1)  and  (2)  do  not  purport  to  have  been 
made  for  the  purpose  of  being  t/ie  hasis  of  a  cJiargc  as  be- 
tween Mrs.  Dawson  and  her  agent,  the  defendant,  but  simply 
for  the  purpose  of  furnishing  her  the  amount  to  be  listed  by 
her  as  taxable  interest,  in  which  view,  it  was  not  necessary 
for  the  paper  to  have  a  date,  (as  it  was  to  be  acted  on  at  the 
time,)  aud,  of  consequence,  but  little  attention  would  be  giv- 
en to  the  accuracy  of  the  date,  we  accept  this  explanation  as 
entirely  satisfactory,  and  reject  the  conclusion  of  the  commis- 
sioners, because  it  involves  the  inference  not  only  that  Mrs, 
Dawson  wilfully  neglected  to  list  her  taxable  interest  at  the 
proper  time,  but  that  in  1854,  having  the  papers  (1)  and  (2) 
before  her,  she  knowingly  took  a  false  oath  in  listing  the 
amount  called  for  by  paper  (1,)  and  omitted  the  additional 
amount  called  for  by  paper  (2,)  and  the  further  inference  that 
the  defendant  has  sworn  falsely  in  his  answer,  and  also,  has 


248  IN  THE  SUPREME  COURT. 


Hill  V.  Williams. 


been  guilty  of  manufactnring  evidence,  to  wit,  the  paper 
marked  (3)  under  circumstances  equivalent  to  perjury.  We 
will  here  remark  that  the  recital  in  paper  (1)  that  Mrs.  Daw- 
son had  directed  the  defendant  not  to  loan  out  her  Tnoiisy,  is 
made  obviously  for  the  purpose  of  furnishing  her  with  an  ex- 
cuse for  not  having  listed  any  taxable  interest  in  the  year 
1853,  and  when  we  find  her  in  1854  listing  her  taxable  inter- 
est on  the  basis  of  that  paper,  the  fact  that  it  was  made  out 
in  1854,  is  manifest  without  calling  in  aid  the  weight  to  which 
the  answer  is  entitled. 

The  paper  marked  (3)  is  the  proper  basis  of  charge  in  stat- 
ing the  account,  and  that  furnishes  the  respective  dates  from 
which  interest  should  be  calculated,  and  disposes  of  the  6th 
exception  on  the  part  of  the  plaintifi". 

The  second  exception  of  the  defendant  is  overruled,  and 
the  first  exception  of  the  plaintifi"  is  allowed.  The  de- 
fendant having  undertaken  to  transact  the  money  matters 
of  Mrs.  Dawson,  on  the  footing  of  being  a  neighbor  and  a  re- 
lation, and  without  making  any  stipulation  or  intention  of 
making  a  charge  for  it,  has  no  right,  after  her  death,  to  claim 
remuneration.  It  may  be,  if  he  had  apprised  her  of  his  in- 
tention to  charge  for  his  services,  she  would  not  have  employ- 
ed him ;  but  it  is  sufiicieut  to  say,  as  he  undertook  to  do  it 
gratuitously,  there  is  no  principle  upon  which  a  promise  by 
her  to  pay  for  his  services  can  bo  implied.  It  may  be  that  he 
expected  she  would  make  a  will  and  give  him  a  legacy.  If 
60,  his  disappointment  is  no  more  than  what  all  persons  hav- 
ing expectations  of  the  land  are  liable  to.  Nor  can  we  yield 
our  assent  to  the  position  that  although  he  did  not  intend  to 
make  a  charge,  still,  as  her  administrator  requires  him  to  give 
an  account  of  liis  agency,  he,  on  that  footing,  becomes  enti- 
tled to  compensation.  We  do  not  see  how  this  follows.  It  is 
to  be  presumed  that  he  was,  at  all  times,  while  she  lived, 
ready  and  willing,  if  called  on  by  her,  to  come  to  a  settle- 
ment, and  make  out  a  statement  showing  how  matters  stood 
between  them,  and  he  was  under  a  similar  obligation  to  do  so 
when  called  upon  by  her  personal  representative,  upon  whom 


JUNE  TERM,  1861.  249 

Hill  V.  Williams. 

the  law  imposed  the  duty  of  requiring  a  settlement.  This 
case  is  distinguishable  from  that  supposed  by  the  defendant's 
counsel  on  the  argument ;  a  guardian  strikes  a  rough  balance 
without  charging  commissions,  and  proposes  to  close  the  mat- 
ter on  that  footing ;  if  it  is  declined,  and  he  is  required  to  go 
into  a  settlement,  produce  regular  vouchers,  and  acquit  him- 
self of  any  neglect  in  failing  to  collect  debts  and  matters  of 
that  kind,  whereby  he  is  chargeable  although  he  has  made 
no  gain,  he  may  well,  then,  insist  upon  an  allowance  of  com- 
missions ;  because  he  is  by  law  expressly  entitled  to  charge 
commissions ;  but  there  is  no  statute  by  which  the  defendant 
is  entitled  to  commissions,  and  in  the  absence  of  a  contract  to 
that  effect,  he  was  not  so  entitled,  and,  therefore,  could  not, 
like  the  guardian,  propose  to  waive  his  right  to  commissions, 
provided  he  was  not  held  to  a  strict  accountability. 

The  second  exception  of  the  plaintiff  is  withdrawn. 

The  third  exception  is  allowed.  As  there  was  a  large 
amount  of  unproductive  interest  due  upon  the  notes  he  held, 
belonging  to  the  plaintiffs  intestate,  it  was  his  duty  upon  be- 
ing warned  to  pay  over  the  notes,  or  have  them  renewed,  to 
have  done  so,  and  the  loss  of  interest  upon  this  interest,  inci- 
dent to  his  neglect  and  refusal,  should  fall  on  him  by  striking 
the  balance  at  the  time  the  bill  was  filed. 

The  4th  exception  is  overruled,  and  also  the  5th  for  the 
same  reason :  The  answer  being  responsive,  is  evidence  for 
the  defendant,  and  supports  the  claims  covered  by  these  ex- 
ceptions. 

There  will  bo  a  reference  to  have  the  account  stated  accord- 
ing to  this  opinion. 

Per  Curiam,  Decree  for  an  account. 


CASES  IN  EQUITY 

ARGUED  AND  DETERMINED 


l^f  THE 


SUPREME  COURT  OF  NORTH  CAROLINA, 
AT  MORGAJNTTOlSr. 


AUGUST  TERM,  1861. 


TATHAM  V.  WILSON. 

Where  a  husband  and  wife  brought  suit  in  a  court  of  equity  for  the  distribu- 
tion of  a  fund  limited  to  them  and  others  by  deed,  as  joint  owners,  and 
after  an  interlocutory  decree  for  an  account,  but  before  the  account  was  taken, 
the  husband  died,  it  was  held  that  the  wife,  surviving,  was  entitled  to  the 
fund. 

This  cause  was  removed  from  Macon  county. 

After  the  hearing  of  the  cause  at  a  former  term  of  the  Court, 
and  a  decree  for  an  account  against  the  defendants,  who  had 
the  fund  in  their  possession,  it  was  referred  to  Mr.  Dodge, 
the  clei'k  of  this  Court,  to  report  the  names  of  the  children  of 
Rachel  Wilson,  and  the  amount  of  the  several'shares  to  which 
each  was  entitled. 

The  clerk  reported  at  large,  and  there  was  no  exception 
taken  to  his  report,  except  one,  filed  by  W.  L.  Love,  tlie  ad- 


IN  THE  SUPREME  COUET.  25i 


Tatham  v.  Wilson. 


ministrator  of  William  Tatham.  lu  tlie  report,  the  clerk 
states  that  William  Tatham  intermarried  with  Isabella,  one 
of  the  children  of  Tlachel  Wilson,  and  joined  with  his  wife 
and  others  in  hrin<ring'  the  suit  for  the  proceeds  of  the  pro- 
perty, limited  to  them  after  the  death  of  Rachel  Wilson,  and 
that  a  decree  was  passed  declaring  the  plaintiffs  entitled  to 
an  account  of  the  fund,  and  that,  afterwards,  the  said  William 
Tatham  died,  and  Mr.  Love  administered  and  became  a  party 
to  the  suit,  and  the  (piestion  was  made  before  the  commissioner, 
whether  the  share  of  said  fund  belonging  originally  to  Isabel- 
la, the  wife  of  said  William,  enured  to  his  representative,  or 
whether  she  is  entitled  to  the  same. 

The  commissioner  reported  that  Isabella  Tatham,  the  wife, 
was  entitled  to  the  share  aforesaid,  and  on  this  ground,  the 
administi'ator  excepts. 

The  cause  being  set  down  for  argument,  it  was  argued  at 
tliis  term  by 

Henry  and  Shipp.  for  Love,  the  administrator,  and 
Gaither  and  3^.    W.   Woodjin,  for  Mi-s.  Tatham, 

Pearson,  C.  J.  The  exception  is  over-ruled.  It  is  clearly 
settled,  that  where  a  husband  dies  after  an  interlocutory  de- 
cree for  an  account,  the  wife  surviving,  becomes  entitled  to 
the  amount  that  may  be  recovered  by  the  final  decree;  in- 
deed, the  wife,  surviving,  is  entitled,  although  the  husband 
should  not  die  until  after  final  decree ;  for  he  does  not  actu- 
ally reduce  the  chose  into  ]iossession  by  a  judgment  or  final 
decree  ;  that  can  only  be  done  by  execution  or  payment  to 
the  husband,  and  the  legfil  otfect  given  to  a  judgment  or  de- 
cree, is  to  give  the  husband  the  benefit  of  taking,  by  surviv- 
orship, in  case  of  the  wife's  death  ;  JVcmmj  v.  Jlarthi,  1  Et|. 
Ca.  Ab.  68;  McCaulcy  v.  Phill'qys,  4  Yes.  Jun'r.  15. 

Per  Cukiam,  Decree  according  to  report. 


CASES  IN  EQUITY, 

ARGUED  AND  DETERMINED 

IN   THE 

SUPREME  COURT  OF  NORTH  CAROLINA, 
AT  RALEIGH. 


JUNE  TERM,  1862. 


BRYAN  W.  GREEN  and  oiJiers  against  CARTER  B.  HARRISON  and 

others. 

A  clerk  and  master  in  equity  is  no  such  party  to  a  suit  pending  in  his  court  as 
to  entitle  him,  under  the  4th  chapter,  23rd  "section  of  the  Revised  Code,  to 
appeal  from  an  interlocutory  order  appointing  another  than,  himself  a  com- 
missioner to  sell  real  estate. 

MoTiox  on  previous  notice  for  a  certiorari  to  the  Court  of 
Equity  of  Wake,  to  bring  up  to  this  Court  the  proceedings  of 
this  case.  The  whole  matter  sufficiently  appears  from  the 
opinion  of  this  Court. 

WtTision^  /Sr.,  for  the  applicant. 

JL  F.  Moore  and  Miller^  for  the  oppoeers. 


254  m  THE  SUPEEME  COUKT. 

Green  v.  Harrison. 

Battle,  J.  This  is  an  application  to  this  Court  for  a  writ 
of  certiorari^  founded  upon  the  following  statement  of  facts : 
The  widow  and  children  of  Bryan  Green,  deceased,  filed  their 
petition  in  the  Court  of  Equity  for  the  county  of  Wake,  in 
which  they  set  forth,  that  the  said  Bryan  Green  had  died  in- 
testate, leaving  a  large  real  and  personal  estate,  and  that  Car- 
ter B.  Harrison  had  been  duly  appointed  his  administrator; 
that  the  estate  was  very  much  indebted,  so  much  so,  that  it 
would  require,  not  only  all  the  perishable  estate,  but  a  con- 
Biderable  number  of  slaves,  to  pay  the  debts,  and  that  it  would 
be  very  much  to  the  interest  of  the  petitioners,  who  were  the 
widow  and  next  of  kin  of  the  deceased,  to  have  a  part  of  the 
real  estate  sold,  and  substituted  in  the  place  of  slaves  in  the 
payment  of  debts.  Some  of  the  petitioners  were  of  full  age 
and  others  minors,  who  sued  by  their  guardian,  and  a  decree 
was  prayed  to  carry  into  eifect  the  object  of  the  petition, — 
Carter  B.  Harrison,  the  administrator,  was  made  defendant, 
and  filed  an  answer,  in  which,  the  facts  stated  in  the  petition, 
were  admitted,  and  he  expressed  the  opinion  that  the  best  in- 
terests of  the  petitioners  would  be  promoted  b}^  the  course 
proposed.  And  an  order  of  reference  having  been  made  to 
the  clerk  and  master,  he  reported  that  it  would  be  to  the  ad- 
vantage of  the  petitioners  to  have  the  object  of  the  petitioners 
carried  out.  A  decree  was  thereupon  made,  ordering  a  sale 
of  certain  portions  of  the  real  estate,  and  appointing  the  ad- 
ministrator a  commissioner  to  make  the  sale,  &c.  Bobert  G. 
Lewis,  the  clerk  and  master  of  the  Court,  opposed  so  much  of 
the  decree,  as  reUrted  to  tiie  appointment  of  the  commissioner 
to  make  the  sale,  insisting  upon  his  right  to  be  appointed,  and 
upon  his  opposition  being  overruled,  prayed  an  appeal  to  the 
Supreme  Court,  which  was  refused. 

The  only  question  now  presented  to  us,  and  upon  which  it  is 
proper  for  us  to  express  an  opinion,  is,  whetlier  the  applicant 
for  a  writ  of  certiorari  had  a  right  to  appeal  from  the  order 
made  in  the  Court  of  Equity  for  Wake  county.  The  order, 
notwithstanding  the  form  of  it,  was  an  interlocutory  one,  made 
in  the  progress  of  a  suit  in  Equity.     If   the   applicant  had  a 


JUNE  TEEM,  1862.  255 


Green  v.  Harrison. 


right  to  appeal  from  that  order,  he  must  derive  it  from  the 
provisions  of  the  Revised  Code,  Chapter  4,  Section  23,  which 
are  as  follows :  "  The  superior  court  may,  whenever  it  shall 
be  deemed  proper,  allow  an  appeal  lo  the  Supreme  Court, 
from  any  interlocutory  judgement,  sentence  or  decree,  at  law 
or  in  equity,  at  the  instance  of  the  party  dissatisfied  therewith, 
upon  such  terms  as  shall  appear  to  the  court  just  and  equita- 
ble, &c."  The  right  of  appeal,  then,  is  given  to  a  party  to  the 
suit.  Who  is  a^M;%  to  an  action  at  law  or  a  suit  in  equity? 
We  understand  that  by  such  a  parti/,  is  meant  one  who  is  di- 
rectly interested  in  the  subject  matter — who  has  a  right  to 
make  defense — control  the  proceedings — adduce  testimony — 
cross-examine  the  witnesses  introduced  on  the  other  side,  and 
to  appeal  from  the  judgement  or  decree  ;  see  1  Green,  on  Ev. 
Sec.  523  and  535 ;  20  How.  St.  Tri.  538n ;  2  Bouvier's  Law 
Die.  284.  All  other  persons  are  regarded  as  strangers  to  the 
action  or  suit.  Tested  by  this  definition,  can  the  clerk  and 
master  claiming  a  right  to  be  appointed  a  commissioner  to  sell 
lands  in  the  progress  of  a  suit  in  equity,  be  deemed  a  party 
to  the  suit?  Is  he  directly  interested  in  the  subject  matter  of 
the  suit?  Or  has  he  a  right  to  make  defense,  control  proceed- 
ings, adduce  testimony  and  cross-examine  the  witnesses' of  the 
opposite  side  ?  Certainly  not.  He  cannot,  then,  in  any  pro- 
per sense,  be  deemed  a  party,  and  not  being  such,  the  statute 
does  not  give  him  any  right  of  appeal. 

Under  the  1st  Sec.  of -Ith  Chapter  of  the  Revised  Statutes 
of  1836,  a  right  of  appeal  from  the  county  to  the  superior 
court  of  law,  was  given  to  either,  the  plaintiff  or  defendant, 
or  to  any  person  *'who  shall  be  interested."  Under  the  latter 
clause  of  this  section  we  held  in  the  case  of  Murphrey  v  Wood^ 
1  Jones,  63,  that  a  purcliascr  of  land  under  an  execution,  issued 
on  a  dormant  judgement,  had  such  an  interest  in  the  subject 
as  entitled  him  to  intervene  and  appeal  from  an  order  of  the 
county  court,  setting  such  execution  aside.  And  again  in 
Watk'ms  v  PemheHon,  2  Jones,  174,  we  decided  that  the  next 
of  kin  of  an  intestate,  was  interested  in  an  order  of  the  coun- 
ty court,  obtained  by  an  administrator,  to  sell  the  slaves  be* 


256  m  THE  SUPKEME  COUET. 

Dillin  V.  Sessoms. 

longing  to  the  estate  for  distribution,  instead  of  having  them 
divided  specifically,  and  that  they  might  appeal  from  it.  The 
clause  under  which  these  decisions  were  made,  has  been  omit- 
ted in  the  Revised  Code^  see  Chap.  4,  Seel,  and  we  presume 
such  appeals  could  not  now  be  allowed.  No  such  provision 
was  ever  made  in  the  grant  of  the  right  of  appeal  from  the 
superior  court  of  law  or  court  of  equity  to  the  Supreme  Court. 
(See  1  Rev.  Stat.  Chap.  4,  Sec.  22  and  23 ;  Rev.  Code,  Cb. 
4,  Sec.  22  and  23,)  and  it  follows  that  no  person,  but  a  party 
can  appeal  from  the  sentence,  judgement  or  decree  of  the  for- 
mer court  to  the  latter.  As  the  present  applicant  was  not  a 
person  who  could  appeal  from  the  interlocutory  order,  made 
in  the  Court  of  equity  for  Wake  county,  he  cannot  be  allowed 
the  writ  of  certio7'ari,  to  bring  up  the  record  of  the  suit,  or  any 
part  of  it,  to  this  Court. 

We  abstain  from  expressing  any  opinion  in  relation  to  the 
decree  made  in  the  Court  below,  except  merely  to  say  that 
the  present  applicant  cannot  bring  it  before  us  for  review, 
either  by  appeal  or  by  writ  of  certiorari.  The  applicant  must 
pay  the  cost  of  his  motion. 

Feb  CuRiAMy  Decree  accordingly. 


PILLIN  AND  CHEERY  against  JOHN  W.  SESSOMS. 

A  motion  to  dissolve  an  injunction  may  be  continued  for  any  cause  the  Court 
may  deem  sufficient,  even  without  a  written  affidavit. 

Appeal  from  the  Court  of  Equity  of  Washington  county,  Fall 
Term,  1861. 

The  bill,  in  this  case,  was  filed  for  an  injunction  to  restrain, 
in  part,  the  collection  of  a  judgment  at  law,  alleging  a  failure 
of  consideration  and  other  matters ;  an  answer  was  filed  by 
the  defendant^  but  the  merits  of  neither  the  bill  nor  answer 


JUNE  TEftM,  1862.  257 

Dill  in  V.  Sessoms. 

are  material  to  the  questions  considered  by  this  Court.  These 
arise  altogether  upon  the  following  transcript  from  the  Court 
below : 

"  Cherry  and  Dillin    | 

,  vs.  >  Injunction. 

John  W.  Sessoms.      ) 

"  This  cause  being  called,  tiie  complainant  moved  for  a  con- 
tinuance, for  cause  shown  ;  pending  which,  the  defendant 
moved  to  dissov-e  the  injunction.  Ordered  by  the  Court,  that 
the  cause  be  continued  till  the  next  term.  Appeal  by  the 
defendant." 

No  counsel  appeared  for  the  plaintiff  in  this  Court. 
Wiiidon,  Jr.^  for  the  defendant. 

Manly,  J.  The  record  does  not  state,  with  distinctness,  the 
ground  of  appeal  in  this  case,  and  we  are  not  quite  sure  that 
it  is  properly  apprehended.  It  is  set  fortli  that,  on  the  call- 
ing of  the  case,  the  complainant  moved  a  continuance  for 
cause  shown,  and  pending  this  motion,  the  defendant  moved 
to  dissolve  the  injunction.  The  Court  continued  the  cause, 
and  the  defendant  appealed. 

If  the  matter  of  complaint  be  that  a  motion  to  dissolve  an 
injunction  must  be  heard  at  the  first  term  when  it  is  made, 
xve  do  not  think  it  is  sustained  by  any  rule  of  law  or  of  prac- 
tice. Such  questions,  like  all  others,  arising  either  ujjon  the 
tinal  heai'iug,  or  in  earlier  stages  of  cases,  are  subject  to  be 
continued  by  the  Judge  for  any  cause  which  he  may  consid- 
er, in  the  exercise  of  a  sound,  legal  discretion,  to  be  sufficient. 

If  the  complaint  be  that  there  sliould  have  been  an  affida- 
vit filed,  setting  forth  the  cause  for  continuance,  we  think  it 
equally  untenable.  The  Rev.  Code,  chap.  31,  sec.  57.  pi.  13, 
Applies  exclusively  to  actions  at  law,  as  is  manifest  from  the 
language  of  the  clause  and  from  the  subject-matter  of  the 
whole  chapter.  We  are  not,  indeed,  aware  of  any  restriction 
upon  the  power  of  a  Judge  sitting  as  a  court  of  equity,  to 
contiaue  a  cause  before  him  in  any  stage,  or  pending  any  rao- 


258  IN  THE  SUPREME  COUET. 

McKay  v.  McNeill. 

tion  in  it,  when  he  may  deem  it  expedient  for  the  purposes  of 
justice.     It  is  a  power  snbjoct,  only,  to  his  sonnd  discretion. 

We  have  not  called  to  our  aid  the  statute  of  1861, 2nd  extra 
gession,  chap.  10,  sec.  4  ;  for  the  reason,  that  it  is  not  neces- 
sary to  derive  the  power,  exercised  in  this  case,  from  any 
other  source  than  the  general  discretionary  powers  of  a  court 
of  equity  ;  and  for  the  additional  reason,  that  it  seems  to  be- 
uncertain  whether  the  law  of  1861,  was  in  force  at  the  time 
of  the  making  of  the  order  of  continuance  in  question. 

The  appeal  should  be  dismissed  with  costs  against  the  ap-' 
pellant,  and  the  same  certified  to  the  court  of  equity  for 
"Washington  county,  to  the  end,  that  the  said  Coiirt  may  pro- 
ceed in  the  cause. 

Per  Cdeiam,  Appeal  dismissed. 


ARCHIBALD  McKAY  and  othei^  arjainsi  DANIEL  McNEILL  and  other's. 

Where  it  appeared  tliat  the  title  to  land,  sought  to  be  sold  foi-  partition,  was 
subject  to  be  divested  out  of  the  petitioners,  by  the  terms  of  an  executory 
devise,  which  extended  to  it,  it  was  7(eW  that  the  Court  could  not  order  a 
sale  of  the  premises. 

Where  a  bill  is  filed  to  have  land  sold  for  partition,  but  no  actual  partition  i* 
asked  in  the  alternative,  and  no  general  relief  prayed  for,  the  Court  will  not 
order  such  actual  partition,  though  the  parties  might  seem  to  be  entitled  to 
it,  if  the  bill  had  been  framed  otherwise. 

Appeal  from  the  Court  of  Equity  of  Robeson  county. 

The  bill  was  filed  by  the  plaintiffs,  as  the  heirs-at-law  of 
JSTeill  Mci^eill,  deceased,  for  a  sale  of  a  certain  tract  of  land, 
which  came  to  them,  as  they  allege,  after  the  failure  of  cerr 
tain  limitations  in  the  will  of  said  Neill  McNeill.  They  set 
forth,  in  the  bill,  that  as  to  the  land,  in  question,  it  was  de- 
vised in  said  will  as  follows  :  "  My  plantation^  my  woman^  Bet, 


JUNE  TEEM,  1862.  259 

McKay  v.  McNeill. 

stock  of  all  kinds,  farming  utensils,  household  and  kitchen 
furniture,  books,  cart,  chair,  and  whatever  I  may  possess,  not 
otherwise  disposed  of,  to  be  ray  son,  David's,  his  natural  life- 
time, and  my  single  daughters,  remaining  on  tlie  plantation, 
should  they  live  longer,  to  be  his  heirs  and  the  heirs  of  each 
other  in  the  plantation,  whilst  single,  and  should  my  son, 
Daniel,  have  a  male  heir,  he  shall  be  heir  to  my  plantation 
after  the  death  of  my  single  daughters."  The  plaintiflfs 
allege  that  David  is  now  dead,  and  that  the  three  daugh- 
ters, Catharine,  Jane  and  Elizabeth,  were  single  at  the  time 
of  the  death  of  the  testator,  and  resided  on  the  plantation  in 
question  with  their  brother,  David,  but  that  they  all  three 
married  and  removed  from  the  plantation  ;  and  these,  with 
their  husbands,  are  made  defendants  to  this  bill.  The  plain- 
tiffs allege  that  Daniel  is  still  alive,  and  is  married,  and  has 
been  so  for  several  years,  but  that  no  child,  either  male  or 
female,  lias  been  born  to  him. 

Daniel  McNeill  answered  and  opposed  the  sale  of  the  land, 
on  the  ground,  that  during  his  life,  no  sale  of  the  premises 
could  take  place,  as  no  absolute  title  accrues  to  the  children 
of  ISTeill  McNeill,  until  the  removal  of  the  contingency  of  his 
having  a  male  child  born  to  him.  Elizabeth  and  Catha- 
rine, two  of  the  daughters,  mentioned  in  the  will,  of  the  testator, 
as  being  single  and  resident  on  the  land,  but  who  are  now 
married,  with  their  husbands,  demurred  to  the  bill. 

The  cause  was  set  for  argument  on  the  bill  and  demurrer, 
and  the  Court  ordered  the  demurrer  to  be  over-ruled,  from 
which  the  defendants  appealed  to  this  Court. 

JLeiich,  for  the  plaintiffs. 

Shepherd  and  W.  McL.  McKay ^  for  the  defendants. 

Battlk.  J.  Tlie  will,  which  we  are  called  upon  to  construe,  is 
certainly  inartificially  drawn,  and  some  of  its  terms  are  some- 
what obscure,  but  we  think  that  enough  appears  to  show  that 
the  construction,  contended  for  by  the  plaintiffs,  is  correct. 
The  land,  in  controversy,  was  given  to  the  testator's  son,  Da- 


360  IN  THE  SUPREME  COURT. 

McKay  v.   McNeill. 

vid,  for  life,  and  the  daughters,  who  were  living  on  the  pre- 
mises at  the  testator's  death,  were  to  have  it  for  life  also,  pro- 
vided they  remained  single  and  survived  JDavid.  But  they 
married  and  left  the  premises  ;  so  this  life-estate  was  defeated 
by  the  condition  annexed.  The  only  other  devise  of  the  land 
is  to  the  male  heirs  of  the  testator's  son,  Daniel,  which,  as  Dan- 
iel has,  as  yet,  no  son,  remains  an  executory  one.  The  conse- 
quence is,  tliat  as  the  life- estates  given,  have  terminated  bj'' 
the  death  of  David  and  the  marriage  of  the  danglitcrs,  the 
land  belongs  to  the  heirs-at-law  of  tlie  testator,  subject  to  the 
executory  devise  in  favor  of  the  heirs-at-law  of  Daniel  Mc- 
Neill. Such  being  the  case,  the  Court  cannot  order  a  sale, 
because  it  cannot  defeat  the  executory  devise  and  convey  a 
good  title  in  fee  simple  to  the  purchaser.  Watson  v.  Watso7iy 
3  Jones'  Eq.  400. 

That,  however,  does  not  deprive  the  plaintiffs  of  the  right 
to  have  a  partition  of  the  land,  and  if  the  bill  contained  eith- 
er a  specific  prayer  in  the  alternative,  for  that  purpose,  or 
even  a  prayer  for  relief  generally,  we  should  not  hesitate  to 
order  a  partition  among  the  parties  specifically,  but  in  the  ab- 
sence of  any  such  prayer,  we  would  not  be  justified  in  order- 
ing what  the  parties  have  not  asked,  and  what,  so  far  as  we 
know,  they  do  not  want. 

We  must,  therefore,  sustain  the  demurrer  and  dismiss  the 
bill,  but  it  is  without  prejudice  to  the  right  of  the  plaintiffs 
to  file  a  bill  for  a  partition  of  the  land  according  to  their  in- 
terest in  the  same. 

Per  Curiam,  Bill  dismissed. 


JUNE  TERM,  1862.  261 


Eason  v.  Cheiiy. 


MARY  EASON,  Achnimsin  •rix,  against  JOSEPH  B.  CHERRY,  and  others. 

Where  one  of  a  coparlnenship,  by  any  means,  gets  a  fund  belonging  to  the 
firm,  be  is  not  at  liberty  to  appropriate  it  to  his  own  exclusive  benefit,  but 
must  share  it  with  his  copartners. 

Cause  removed  from  tlic  Court  of  Equity,  of  Bertie. 

Joseph  B.  Cherry,  William  11.  Tayloe  and  Alfred  Eason, 
entered  into  a  copartnership  for  the  purchase  of  a  large  quan- 
tity of  cypress  timl)cr,  (standing,)  with  the  purpose  of  jointly 
working  it  into  shingles,  and  of  shipping  and  selling  the  same, 
for  which  they  gave  their  jointnotcs  to  the  proprietor,  one 
Roscoe,  for  the  sum  of  $5000.  Afterwards,  instead  of  work- 
ing the  timber,  they  sold  it  for  an  advance  of  $800,  for  which 
the  partner.  Cherry,  i-eceived  the  money.  In  the  purchase 
and  use  of  said  timber,  each  of  the  said  i)artners  was  to  pay 
one  third  of  the  expenses,  and  receive  one  third  of  the  profits. 
Cherry  agreed,  on  receiving  the  money,  on  the  re-sale  of  the 
timber,  to  pay  Koscoe,  the  original  purchase  money,  but  he 
has  failed  to  do  so,  and  is  now  insolvent.  After  receiving  the 
mone}^  on  the  re-sale,  he  advanced  of  it  to  Eason,  the  sum  of 
$2601  for  which  he  took  his  notes,  payable  to  himself,  (Cher- 
ry,) and  on  which  suit  has  been  brought,  and  judgment  taken, 
and  it  is  to  enjoin  the  collection  of  this  judgment,  that  this 
bill  was  filed  by  Eason's  administratrix,  he  being  now  dead. 
The  ground  of  this  application  is,  that  the  original  debt  is 
still  due  to  Roscoe,  and  suit  has  been  brought  thereon,  and 
judgment  and  execution  will  be  obtained  against  the  three, Cher- 
ry, Tayloe  and  Eason's  estate  ;  that  Cherry  is  insolvent,  and 
judgment  and  execution  will  be  taken  against  him  for  more  than 
the  amount  Of  his  share  of  the  property ;  that  Eason's  estate  (he 
being  now  dead)  is  good  for  his  part  of  the  debt  to  Roscoe, 
and  Tayloe  is  good  for  his  half  of  it,  but  if  Cherry  is  permitted 
to  enforce  the  judgment  he  has  obtained  on  account  of  the  ad- 
vancements to  him,  he  will  lose  the  benefits  of  these  advance- 
ments, on  account  of  the  insolvency  of  Cherry.  The  prayer 
is  therefore  to  restrain  Cherry  from  pressing  an  execution  at 
law  on  this  judgment  against  Eason's  estate. 


262  IN  THE  SUPREME  COURT. 


Eason  v.  Cherry. 


Tliere  is  no  controversy  as  to  Cherry,  but  Tayloe  answers 
and  insists  that  in  as  much  as  Eason  has  received  so  much  of 
the  joint  copartnership  funds,  and  he  (Tayloe)  has  received 
nothing,  and  in  as  mucli  as  he  is  able,  and  will  liave  to  pay 
lialf  of  the  original  purchase  money  to  Eoscoe,  he  is  entitled 
to  share  in  one  half  of  tlie  advancements  made  by  Cherr}'^ 
to  Eason,  and  that  as  to  that  much  of  Cherry's  judgment 
against  Eason's  administratrix,  siie  should  be  decreed  to  pay 
it  to  Tayloe. 

The  cause  was  set  for  hearing  on  bill  and  answers,  and  up- 
on a  motion  to  dissolve  the  injunction  and  sent  to  this  Court 
by  consent. 

Garrett  and  Barries,  for  the  plaintiff. 
Winston^  Jr.,  for  the  defendant. 

Battle,  J.  There  can  be  no  doubt  that  the  plaintiff  is  en- 
titled to  relief  against  the  defendant,  Cherry ;  but  we  think 
it  is  equally  clear,  that  the  defendant,  Tayloe,  is  entitled  to 
share  in  the  relief.  The  plaintiff's  intestate,  and  the  defend- 
ants being  partners  in  the  purchase  and  sale  of  a  lot  of  tim- 
ber, mentioned  in  the  pleadings,  whatever  part  of  the  part- 
nership funds  came  to  the  hands  of  either  of  the  members,  be- 
fore a  final  settlement  of  the  concern,  belonged  equally  to  all. 
This  is  so  obvious  a  principle  of  the  law  of  partnership  that 
it  scarcely  needs  tlie  aid  of  an  adjudicated  case  for  its  recog- 
nition, but  if  it  did,  that  of  Allison  v.  Davidson,  2  Dev.  Eq. 
79,  is  one  directly  in  point.  It  was  tliere  held,  among  other 
things,  tiiat  where  of  four  partners,  one  died  insolvent,  large- 
ly indebted  to  the  partnership,  and  two  others,  without  the 
consent  of  the  fourth,  received  their  shares  from  the  executor 
of  the  deceased,  tlie  sums  so  received,  remained,  as  between 
the  survivors,  joint  stock.  So,  in  the  present  case.  Cherry 
being  insolvent,  largely  indebted  to  the  partnership,  the  sum 
received  from  him  by  the  plaintiff''s  intestate,  ig,  as  between 
her  and  the  defendant,  Tayloe,  joint  stock,  to  which  they  are 
equally  entitled.      An  analagous   principle   prevails  among 


JUNE  TERM,  1862.  26? 


Bennett  v.  Merritt. 


co-snreties,  so  that  when  one  of  them,  hy  any  means,  gets  a 
fund  belonging  to  the  principal,  he  is  not  at  liberty  to  appro- 
priate it  to  his  own  exclusive  benefit,  bnt  must  share  it  with 
his  co-surety.  This  has  been  decided  in  many  cases,  among 
whicli  are  Bcmics  v.  Pearson,  G  Ire.  Eq.  4S2,  and  Leanj  v. 
Cheshire,  3  Jones'  Eq.  170. 

Pek  Curiam,  A  decree  may  bo  drawn   in^  accordance 

with  this  opinion. 


JANE  BENNETT  agnimt  JACOB  MERRITT  and  others. 

"Where  the  agent  of  a  trustee  received  money,  arising  from  the  sale  of  trust 
property,  made  by  collusion  with  him,  it  was  held  not  to  be  a  defense  to  a  bill 
against  such  agent  to  follow  the  funds  in  his  hands,  that  he  had  paid  the 
money  over  on  liabilities  which  he  had  incurred  for  the  trustee. 

Where  trust  property  is  wrongfully  sold  by  a  trustee,  by  collusion  with  an- 
other, who  did  not,  however,  receive  any  part  of  tlie  price  for  which  the 
property  sold,  it  was  hehl  that  the  principle  of  following  the  trust  fund,  in 
its  converted  state,  does  not  apply  to  such  other  person. 

Cause  removed  from  the  Court  of  Equity  of  Wayne  county. 

Thomas  Bennett,  of  the  county  of  Sampson,  died  about  the 
year  1857,  leaving  a  widow,  the  present  phiintitf,  Jane,  and 
one  daughter,  Virginia,  his  distribntees,  and  the  defendant, 
James  R.  Parker,  administered  on  his  estate.  Afterwards,  in 
August,  1857,  Virginia,  the  daughter,  died,  leaving  her  mo- 
ther, the  said  Jane,  her  sole  distributee.  J.  R.  Parker  also 
administered  on  her  estate.  The  said  Parker  took  possession 
of  the  personal  estate  of  both,  consisting  of  slaves,  household 
furniture,  stock  of  hor.'^es,  »fec.,  carriage,  growing  crop,  provi- 
sions on  baud,  notes,  <kc.  on  several  individuals.  In  March, 
1858,  the  defendant,  Jacob  Merritt,  insinuated  himself  into 
the  confidence  of  the  plaintifi:'  and   married   her,  she  having 


26i  '       IN  THE  SUPREME  COURT. 


Bennett  v.  Merritt 


first  luade  a  deed  of  maniafre  settlement,  securing  all  her  pro- 
perty to  her  sole  and  separate  use,  and  constitutini;-  himself 
(the  said  Merritt)  her  trustee.  It  turned  out  that  Merritt,  at 
the  time  of  this  marriage,  was  a  married  man,  and  had  a  wife 
then  living  in  the  State  of  Alabama,  and  was  otherwise  a  ve- 
ry faithless  and  unworthy  man.  Shortly  after  the  marriage  with 
Mrs.  Bennett,  he  set  himself  to  work,  by  harshness  and  intimi- 
dation, to  get  her  property  in  his  hands,  and  to  sell  all  of  it 
he  could  get.  Parker,  the  administrator,  who  seems  to  have 
understood  the  character  of  Merritt,  thwarted  him  as  much  as 
he  could  in  his  designs  of  despoiling  Mrs.  Bennett  of  her  pro- 
perty and  kept  much  of  it  in  liis  hands,  while  it  appears  that 
the  defendant,  Monk,  an  uncle  of  Merritt,  aided  and  abetted 
him  in  his  designs.  It  appeared  that  Mrs.  Bennett  was  in- 
duced, after  the  marriage,  to  remove  from  her  homestead  in 
Sampson,  to  a  place  called  Magnolia  in  Duplin  county,  be- 
longing to  Monk,  and  he  admits  that  he  advised  their  remov- 
al to  this  place,  but  says  it  was  from  kind  and  benevolent 
motives. 

It  is  alleged  in  the  bill,  and  admitted,  that  Meiritt  made  a 
conveyance  of  all  his  interest  in  the  slave-property,  which 
had  belonged  to  Mrs.  Bennett,  to  the  defendant,  Monk,  but 
he  saj's  that  this  conveyance  was  by  no  means  made  in  fraud  of 
the  cestui  qiii  trnst^  but  for  a  valuable  consideration,  to  wit, 
the  indemnity  of  him  (Monk)  for  debts  paid  and  liabilities  in- 
curred by  him  for  the  said  Jacob.  It  appeared  that  Merritt 
succeeded  in  getting  two  of  the  slaves,  Ilillory  and  Ellender, 

which  he  sold  for  % ,  and  delivered,  $900  of  the  money  to 

Monk,  who,  in  his  answer,  says  he  paid  it  out  on  liabilities 
which  he  had  incurred  for  Merritt,  and  he  goes  into  a  list  and 
minute  account  of  such  payments.  Monk  answers,  that  he 
had  no  knowledge  how  the  mono}''  arose,  but  the  proofs  on 
this  subject,  in  the  opinion  of  the  Court,  are  sufficient  to  fix 
the  knowledge  upon  him. 

Merritt  got  possession  of  another  slave  belonging  to  Mrs. 
Bennett,  by  the  name  of  Dilsc}' ,  and  in  company  with  Monk, 
was  proceeding  to  carry  her  put  of  the  State  to  sell  her.     On 


JUNE  TERM,  1862.  205 

Bennett  v.  Merritt. 

arriving  at  Goldsboro',  tliey  consulted  an  attorney,  who  told 
them  they  could  not  sell  the  slave  unless  they  got  the  author- 
ity of  Parker,  the  administrator.  They  tlien  went  back  to 
Parker,  who  executed  a  bill  of  sale  to  Monk  for  Dilsey,  and 
he  conveyed  her,  in  like  manner,  to  Merritt,  who  took  her  to 
Eichmond  and  sold  her  and  received  tlie  money  for  her. 
Monk,  in  his  answer  to  this  allegation,  says  that  Dilsey  was 
an  unmanageable  slave  and  had  lately  runaway,  and  that  her 
mistress  was  displeased  with  her,  and  wished  iier  sold.  Tie 
denies  receiving  an_y  part  of  the  purchase-money. 

The  prayer  of  the  bill  is  for  a  decree  of  nullity  of  the  mar- 
riage, and  that  Monk  deliver  up,  for  cancellation,  the  convey- 
ance of  the  property  to  him  by  Merritt,  and  that  he  account 
for  the  value  of  all  the  property  belonging  to  Mrs.  P)ennett, 
which  was  sold  by  Merritt,  and  for  the  $900  received  by  him, 
as  being  the  proceeds  of  her  property,  also  for  a  decree  against 
\\\fa  for  tlie  price  of  Dilsey,  and  also  a  decree  against  Mer- 
ritt for  an  account  of  all  the  propertj'-  which  came  into  his 
hands. 

The  cause  was  set  for  hearing  on  the  bill,  answer,  exhibit 
and  proofs,  and  sent  to  this  Court  by  consent. 

B.  F.  Moore^  for  the  plaiiitiff. 
McEae,  for  the  defendants. 

Peakson,  C.  J.  The  allegation,  that  at  the  time  of  the 
marriage,  the  defendant  had  a  wife,  who  was  then  living,  is 
clearly  proved  ;  of  course  his  marriage  with  the  plaintiff  was 
void,  and  she  is  entitled  to  a  decree  of  "  nullity  of  marriage" 
so  far  as  she  is  concerned.  She  is  also  entitled  to  a  decree 
making  void  the  deed  by  which,  in  contemplation  of  mar- 
riage, she  conveyed  her  estate  to  Merritt,  in  trust,  for  her  sole 
and  separate  use.  She  is  also  entitled  to  a  decree  that  the 
conveyance  of  the  slaves,  made  by  Merritt  to  Monk,  shall  be 
surrendered  and  cancelled,  so  as  to  remove  the  cloud  from 
lier  title. 

We  arc  also  satisfied  by  the  evidence,  that  the  $900,  wliich 
Merritt  handed  over  to  the  defendant,  Monk,  to  secure  him 


266  m  THE  SUPREME  COURT. 


Bennett  v.  Merritt. 


against  the  liabilities  which  he  had  entered  into  for  Merritt, 
was  mone}^  received  b}'^  Merritt  for  the  two  negroes,  Hillory 
and  EUender,  and,  on  the  ground  of  following  the  trust  fund, 
the  plaintiff  is  entitled  to  a  decree  against  Monk  for  that 
amount.  He  faintl}'  denies  notice,  but  that  is  clearly  fixed 
on  him,  and  the  ground  on  which  he  puts  himself,  in  respect 
to  this  money,  to  wit,  that  he  had  paid  it  to  the  creditors  of 
Merritt,  to  whom  he  had  become  liable,  as  surety  for  Merritt, 
will  not  avail  him.  That  money,  in  his  hands,  was  a  part  of 
the  trust  fund,  and  he  knew  it :  consequently,  Merritt,  as  a 
trustee,  had  no  right  to  apply  it  to  the  discharge  of  his  debts, 
and  the  defendant,  Monk,  had  no  right  to  do  so  for  him. 

In  respect  to  the  wonum,  Dilse}',  we  have  had  more  diffi- 
culty in  coming  to  a  conclusion.  She  was  conveyed  by  Par- 
ker to  Monk,  and  he  made  a  bill  of  sale  to  Merritt,  for  the 
purpose  of  enabling  Merritt  to  sell  her.  Merritt  did  accord- 
ly  sell  her,  but  it  does  not  appear,  according  to  proofs,  that 
Monk  received  any  part  of  the  purchase-money  ;  on  the  con- 
trary, we  are  satisfied  that  Merritt  used  the  money,  received 
by  him,  as  her  price,  himself;  so  l:he  principle  of  following 
the  trust  fund,  in  its  converted  state,  does  not  apply,  and  put- 
ting out  of  view  the  averment,  that  the  woman,  Dilsey,  was 
thus  sold  by  the  consent  of  the  plaintiff",  because  of  the  slave's 
insubordination,  and  also  the  averment  that  it  was  done  un- 
der the  advice  of  respectable  counsel,  we  can  see  no  ground 
on  which  the  defendant.  Monk,  can  be  made  liable,  in  respect 
of  this  slave,  even  if  we  suppose  he  acted  collusively,  and  be- 
came an  actor  in  the  transaction  with  an  intent  to  aid  Mer- 
ritt, the  trustee,  to  get  into  his  hands  this  negro,  and  sell  her, 
and  appropriate  the  purchase-money  to  his  own  use  ;  for,  when 
Monk  takes  the  ground,  that  no  part  of  the  money  can  be 
traced  to  his  hands,  he  cannot  be  reached  on  the  principle  of 
following  the  fund,  and  there  is  no  otlier  princtple  by  which, 
in  Equity,  he  cau  be  made  liable. 

The  defendant,  Merritt,  is  chargable  with  all  the  funds 
which  came  to  his  hands,  by  reason  of  the  sales  made  by  him 
or  otherwise. 


JUNE  TEEM,  1862.  267 


Gillis  V.  Harris. 


As  to  the  other  propert}',  the  deed  executed  by  Merritt  to 
Monk,  does  not  include  it,  and  tliere  is  no  proof  of  his  having 
taken  it  into  his  possession,  so  there  can  be  no  decree  in  re- 
spect to  it.  So,  the  pUiintiff  must  be  left  to  her  own  vigilance 
in  gathering  it  np.  There  will  be  a  decree  against  Parker  for 
an  account. 

Per  Cukiam,  Decree  accordingly. 


KENNETH  GILLIS   and   wife  against  WILLIAM   HARRIS   AND  RO- 
BERT HARRIS,  Executors. 

■However  deeply  impressed  the  Court  may  be  as  to  a  testator's  particular 
intention,  it'he  has  been  grossly  negligent  in  setting  forth  his  piuf  .:.e,  and 
to  declare  such  to  be  his  intention,  would  require  the;  Court  to  ignore  the 
principles  wdiich  have  been  adopted  to  give  efiect  to  the  intentions  of  tes- 
tators, such  declaration  will  not  be  made. 

Cause  removed  from  the  Court  of  Equity  of  Granville  county. 

The  suit  is  brought  against  the  defendants,  as  executors,  to 
recover  a  legacy  of  "  three  small  negroes,"  given  to  the 
plaintiff,  Mrs.  Sarah  Gillis,  in   the  will  of  her  father,  Eobert 

Harris,  who  died  in  the  count}'  of  Person,  on  the day  of 

,  1847.  The  will  is  dated  1st  June,  1842,  and  proba- 
bly was  written  about  that  time,  but  the  proofs  go  to  fix  its 

actual  execution  on  the day  of ,1847,  when  it  was 

materially  altered  by  interlineations  and  additions.  As  there 
■were  many  facts  brought  into  the  argument,  arising  from  the 
face  of  the  will,  it  is  deemed  advisable  to  set  it  out  in  full : 

"Item  1.  I  give  to  my  son,  William  Harris,  one  horse,  bri- 
dle and  saddle,  one  cow^  and  calf,  one  bed  and  furniture, 
273^  acres  of  laud,  whereon  he  now  lives,  six  negroes,  by  name, 
Linda,  (&c.)  and  unto  him  and  bis  heirs  forever,  which  he  has 
already  received. 


268  m  THE  SUPREME  COURT. 

Gillis  V.  Harris. 

"Item  2.  I  give  and  bequeath  to  my  son,  Lawson  Harris, 
one  horse,  bridle  and  saddle,  one  cow  and  calf,  one  bed  and 
furniture,  three  hundred  acres  of  land,  adjoining,  ifcc,  which 
he  has  already  received  and  expended  the  value  to  his  own 
use. 

"  Item  3.  I  give  and  bequeath  unto  my  daughter,  Sarah 
Gillis,  one  feather  bed  and  furniture,  one  mare,  bridle  and 
saddle,  four  negroes,  by  name.  Dice,  Jenn3^  Peggy,  Jacob ; 
to  her  and  her  heirs  forever,  which  she  has  already  received. 

"  Item  4.  I  give  and  bequeath  to  my  son,  Robert  Harris, 
one  horse,  bridle  and  saddle,  one  bed  and  furniture,  seven 
negroes,  (naming  them,)  to  him  and  his  heirs  forever,  which 
he  has  already  received. 

"  Item  5.  I  leave  to  my  beloved  wife,  Sarah  Harris,  the 
tract  of  land  whereon  I  now  live,  during  her  life,  or  my  wid- 
ow ;  also  as  many  of  my  negro  men  and  women  as  she  choos- 
es out  of  the  number  I  leave ;  two  choice  horses  ;  four  cows 
and  calves ;  all  my  stock  of  hogs,  15  choice  sheep,  (several 
small  articles,)  the  rest  of  my  black  people  to  be  divided  af- 
ter William  Harris  receives  one,  the  value  of  Tine,  which  my 
son,  Robert  Harris,  has,  over  the  number  of  his  brother  Wil- 
liam. Also,  it  is  my  desire,  that  my  son,  William,  to  have 
fifty-three  dollars,  to  make  his  tract  of  land  equal  value  with 
the  tract  I  gave  my  son,  Lawson  ;  also,  it  is  my  desire,  that 
my  daughter,  Sarah  Gillis,  to  have  three  small  negroes  more, 
which  will  make  her  number  seven,  equal  with  her  brothers' 
number. 

"  I  give  and  bequeath  unto  the  heirs  of  my  sou,  Lawson 
Harris,  deceased,  two  negroes,  Milly  and  Jeff,  to  them,  and 
their  heirs  forever. 

"Item.  I  give  and  bequeath  unto  my  son,  Robert  Harris, 
the  tract  of  land  whereon  I  now  live,  containing  600  acres, 
after  the  death  or  marriage  of  my  wife,  to  him  and  his  heirs 
forever  ;  also,  the  negroes,  which  I  leave  lier,  to  return  to  my 
estate  at  her  death  or  marriage. 

"I  give  and  bequeath  unto  my  daughter,  Sarah  Gillis,  the 
tract  of  land  whereon  my  brother,  Overton  Harris,  lived,  con- 


JUNE  TEEM,  1862.  269 

Gillis  V.  Harris. 

taining  150  acres,  to  lier  and  hsr  heirs  forever.  My  other 
two  tracts  of  hiiul,  not  mentioned,  including  the  mill  tract 
and  the  other  tract  above,  containing  640  acres,  and  all  my 
negroes,  not  mentioned,  to  be  equally  divided  between  my 
two  sons,  William  Harris,  and  my  son,  Robert  Harris,  and 
my  daughter,  Sarah  Gillis,  and  the  heirs  of  my  son,  Lawson 
Harris,  deceased,  and  the  rest  of  my  property,  w^agon,  still, 
&c.  It  is  my  desire,  that  my  son,  William,  shall  have  thirty 
acres  of  land  surveyed  off  from  the  tract  on  which  I  reside, 
adjoining  the  tract  I  have  given  him,  and  the  balance  of  the 
tract  to  my  son,  Robert,  as  before  recited." 

The  two  sons,  William  and  Robert,  were  appointed  execu- 
tors. There  was  much  litigation  growing  out  of  this  will, 
first,  on  an  issue  of  devisavit  vel  non,  then  as  to  the  construc- 
tion in  respect  of  the  manner  of  dividing  the  residue  with 
Lawson's  childi-en — then  this  suit  was  brought,  alleging  a  gen- 
eral waste  and  mal-adininistration,  which  pended  in  that  shape 
several  terms,  but,  by  consent  of  the  parties,  the  claim  was 
narrowed^  to  the  legacy  of  *'  three  small  negroes,"  given  in 
the  5th  item  of  the  will.  This  claim  is  resisted,  on  the  irround. 
that  this  legacy  had  been  paid  and  satisfied  by  the  convey- 
ance of  negroes  to  the  children  of  Mrs.  Gillis,  in  the  life-time  of 
the  testator.  This  conveyance  was  by  a  bill  of  sale,  dated  No- 
vember T,  184:5.  The  etfective  words  of  tliis  instrnment,  are, 
"  Know  ye,  that  I,  the  said  Robert  Harris,  for  and  in  consid- 
eration of  the  love  and  aftection  which  I  have  and  bear 
unto  my  beloved  daughter,  Sarah  Gillis,  of  the  State  of 
Georgia,  Cass  county,  and  for  divers  other  good  causes  and 
considerations,  me  hereunto  moving,  have  given  and  granted, 
and  by  these  presents  do  give  and  grant  unto  the  said  heirs  of 
the  said  Sarah  Gillis,  one  negro  woman,  named  Lizzie,  Eas- 
ther  Susan,  William  and  Thomas,  and  all  her  increase  here- 
after," with  a  clause  of  general  warranty  of  title.  The  facts, 
as  gathered  from  the  depositions,  in  regard  to  these  slaves,  are, 
that  Lizzie,  the  mother,  had  been  accused,  and  taken  before  a 
magistrate  for  burning  a  tobacco  barn,  and  the  charge  was 
compromised  by  the  master's  consenting  to  send  the  woman 

2 


370  1^  THE  SUPREME  COURT. 

Gillis  V.  Harris. 

out  of  the  State.  She  was  first  sent  a  short  distance  into 
Virginia,  and  then  she  and  her  three  cliildren  were  put  into 
the  hands  of  Daniel  Gillis,  one  of  the  children  of  Sarah,  with 
the  bill  of  sale,  and  carried  to  Cass  county,  Georgia,  where 
the  family  resided.  There  was  much  testimony  as  to  the  in- 
tention of  the  testator  in  making  this  conveyance,  the  eifect  of 
which,  is  mentioned  in  the  opinion  of  the  Court.  The  case 
was  heard  upon  bill,  answer,  exhibits  and  proofs. 

Graham,  for  the  plaintiff. 
Miller,  for  the  defendants. 

Peaeson,  C.  J,  We  are  deeply  impressed  with  the  con- 
viction, that  if  the  testator  could  now  be  asked,  "  Was  it  your 
intention,  in  addition  to  the  four  negroes  which  you  gave  to 
Mrs.  Gillis,  and  the  four  others  which  you  gave  to  her  chil- 
dren, also,  to  give  her  three  small  negroes  by  your  will  ?"  the 
answer  would  be,  "  that  was  not  my  intention  ;  for  my  object 
was  to  make  all  my  children  equal." 

If,  by  the  application  of  the  principles  of  law,  which  have 
been  adopted  for  the  purpose  of  giving  effect  to  the  intention 
of  testators,  there  should  be  a  failure  to  give  effect  to  the  in- 
tention, in  this  particular  instance,  the  reply  is,  it  must  be  as- 
cribed, not  to  any  defect  in  the  principles  of  law,  but  to  the 
unaccountable  neglect  of  the  testator. 

Assume,  as  insisted  upon  on  the  part  of  the  defendants,  that 
the  will  was  written  and  signed  in  1842,  the  day  of  its  date : 
If  it  was  the  intention  of  the  testator,  by  his  deed  of  gift  in 
1845,  of  four  negroes  to  the  children  of  Mrs.  Gillis,  to  satisfy 
the  legacy  to  her  of  "  three  small  negroes,"  it  was  neglect,  on 
his  part,  not  to  have  that  fact  set  out  in  the  deed.  Again  ;  if 
such  was  his  intention,  he  was  guilty  of  the  most  unaccounta- 
ble neglect  in  1847,  when  the  paper  was  in  his  presence,  for- 
mally attested  by  two  witnesses,  for  the  purpose  of  giving  it 
legal  effect,  in  not  then  revoking  the  legacy  of  "  three  small 
negroes"  to  his  daughter,  on  the  ground,  that  he  had  made 
her  equal  to  her  brothers  by  the  gift  to  her  children. 


JUNE  TERM,  1862.  271 

Gillis  V.  Harris. 

Law  is  made  for  the  vigilant  and  not  for  the  negligent,  is  a 
maxim  which  may  be  applied  as  well  to  those  who  are  giv- 
ing away  property,  as  to  those  who  are  seeking  to  acquire  it. 
In  our  case,  it  was  the  neglect  of  the  testator  not  to  give  evi- 
dence of  his  intention,  and  there  is  no  ground  on  which  it  can 
be  presumed.  The  gift,  which  is  insisted  upon  as  a  satisfac- 
tion of  the  legacy,  was  not  of  three  small  negroes,  but  of  four 
negroes,  one  of  whom  was  a  grown  woman,  and  the  gift  was 
not  to  the  daughter,  but  to  her  children,  and  if  parol  evidence 
were  competent  to  show  the  intention,  there  is  no  evidence 
that,  at  any  time,  the  testator  declared  that  the  intention  was 
to  satisfy  the  legacy  by  this  gift.  In  Ilowze  v.  Mallett,  4 
Jones'  Eq.  194,  the  testator  required  the  legatee  to  admit,  ex- 
pressly, in  writing,  that  the  money  was  received  in  satisfac- 
tion of  the  legacy. 

The  conclusion  that  the  legacy  was  not  adeemed  by  the 
gift,  is  irresistable  on  principles  well-settled — putting  the 
case  on  the  supposition  that  the  paper  was  signed  by  the  tes- 
tator in  1842,  (as  to  which,  there  is  no  proof).  On  the  sup- 
position, that  the  paper  was  not  signed  until  after  the  gift, 
there  is  no  ground  on  which  to  base  an  argument  in  support 
of  an  ademption.  So,  taking  it  either  way,  the  defendants 
have  failed  to  establish  the  allegation,  that  the  legacy  is  sat- 
isfied. 

There  must  be  a  decree  that  the  plaintiffs  are  entitled  to  the 
value  of  the  three  small  negroes  to  be  fixed,  two  years  after 
the  death  of  the  testator,  with  interest  from  that  date  ;  as  to 
which,  there  will  be  a  reference. 

Peb  Cueiam,  Decree  accordingly. 


272  m  THE  SUPREME  COURT. 


Clark  V.  Bell. 


SUSANNAH  CLARK  and  others  against  JOSEPH  BELL,  Executor. 

Where  a  negro  woman  slave  was  willed  to  one  for  life,  and  then  to  be  free, 
and  such  slave  formally  elected  to  remain  a  slave,  it  was  Tield  that  the 
status  of  such  woman,  after  such  election,  was  fixed  as  from  the  testator's 
death,  and  that  her  offspring,  born  after  that  event,  remained  slaves,  and 
that  she  and  her  offspring  passed  by  a  residuary  clause  of  the  will. 

Cause  removed  from  the  Court  of  Equity  of  Chatham  county. 
The  only  questions  in  this  cause,  gi'ow  out  of  the  provisions 
of  the  will  of  Elijah  Bell,  taken  in  connection  with  the  fact, 
that  the  woman  formally  refused  to  accept  of  the  boon  of 
freedom,  ofiered  to  her  by  the  will  of  her  late  owner.  The 
■whole  matter  is  sufficiently  set  forth  in  the  opinion  of  the 
Court. 

ISTo  counsel  a])peared  for  the  plaintiffs  in  this  Court. 
PMllijps^  for  the  defendant. 

Manly,  J.  The  bill  is  filed  to  obtain  a  construction  of  the 
•will  of  Elijah  Bell,  in  respect  to  the  disposition  made  therein 
of  the  woman,  Louisa,  under  the  present  circumstances  of  her 
case.  The  clauses  of  the  will,  material  to  the  enquiry,  are  the 
4:th  and  9th,  which  are  respectively,  as  follows:  "4th  Item: 
I  give  and  bequeath  to  my  sister,  Susannah  Clark,  during  her 
natural  life,  a  certain  negro  girl,  by  the  name  of  Louisa,  and 
after  the  death  of  my  sister  as  aforesaid,  I  direct  and  request 
/  that  the  said  negro  girl,  Louisa,  be  set  free." 

"  9th  Item  :  I  give  and  bequeath  to  my  brother,  Thomas 
Bell,  all  the  residue  of  iny  property,  both  real  and  personal, 
that  I  have  not  heretofore  given  away,  to  him  and  his  heirs 
in  fee  simple  forever." 

An  enquiry  has  been  made  under  the  direction  of  the  Court 
below,  from  which  it  appears  that  the  woman  is  unwilling  to 
accept  of  freedom  upon  the  condition  of  leaving  the  State. 
Tliis  enquiry  has  been  conducted  with  such  apparent  care, 
that  the  Court  is  satisfied  with  the  result.  Under  these  cir- 
cumstances, the  Court  is  called  upon  to  declare  what  disposi- 


JUNE  TERM,  1862.  273 

Clark  V.  Bell. 

tion  should  be  made  of  the  woman  and  her  children,  born 
since  the  death  of  the  testator. 

It  will  be  seen  bj^  reference  to  our  statute  laws,  Rev.  Code, 
•chapter  107,  sections  45,  46,  47,  53,  that  emancipation  can 
only  be  eflected  in  certain  prescribed  forms,  and  upon  the 
condition  of  the  manumitted  slaves  leaving  the  State  not  to 
return. 

It  is  said  in  the  case  of  Hogg  v.  Capchart,,  reported  in  a 
note  to  Feimster  v.  Tucker^  5  Jones'  Eq.  71,  that  freedom 
will  not  be  forced  upon  any  one.  It  is  not  the  policy  of  the 
law  to  do  so.  It,  therefore,  follows  that  the  refusal  of  the 
woman  to  leave  the  State,  that  is,  to  accept  of  the  bequest  of 
freedom,  upon  the  conditions  which  would  make  it  lawful, 
frustrates  and  makes  void  the  bequest.  The  children  of  the 
woman,  Louisa,  were  born  after  the  death  of  the  testator. 
The  election  of  the  mother,  by  which  the  bequest  becomes 
void,  determines  the  status  of  her  offspring.  The  will  is  fixed 
by  the  death  of  the  testator,  and  is  conVsidered  to  take  effect 
and  determine  the  state  of  the  property  as  from  the  death. 
Her  election,  (although  subsequent,)  not  to  conform  to  the 
requirements  of  law.  made  the  bequest  void  from  the  begin- 
ning, and  the  right  of  emancipation,  which  she  might  have 
claimed,  has  not  inured  to  the  benefit  of  her  childi-en. 

The  mother  and  children,  then,  falling  back  into  the  estate, 
the  remaining  enquiry  is,  do  thc\^  go  to  the  next  of  kin,  as 
property  undisposed  of  by  the  will,  or  do  the}'  pass  to  the  re- 
siduary legatee. 

After  due  consideration  of  the  contents  of  the  will,  we  see 
no  sufKcient  reason  for  withholding  them  from  the  residuum. 

A  general  gift  of  the  residue  includes  legacies  not  effectu- 
ally disposed  of,  whether  they  fail  by  lapse  or  by  illegality, 
unless  it  be  clear  npon  the  will,  that  the  intention  was  differ- 
ent. 

We  do  not  suppose  that  the  testator  expected  this,  or 
any  other  provision  of  his  will  to  fail  and  fall  into  the  residu- 
um, but  the  rule  of  tlie  courts  is  that  such  will  fall  there,  uu- 
Jiiss  it  shall  appear  from  the  restricted  terms  of  the  residuary 


274  m  THE  SUPKEME  COUET. 


Camp  V.  Mills. 

clause  itself,  or  from  other  parts  of  the  will,  that  this  was  not 
his  intention  ;  Sorrey  v.  Bright,  1  Dev,  and  Bat.  113. 

Pek  Curiam,  Decree  accordingly. 


JOHN  C.  CAMP  and  another  ar/ainst  WILLIAM  S-  MILLS  and  others. 

A  bill  in  equity,  for  a  discovery  and  an  account  by  one  of  two  wards  against 
one  of  two  joint-guardians,  alleging  that  he  had,  exclusively,  received  the 
estate  of  the  wards,  in  which  bill  the  other  guardian  is  made  plaintiff,  and 
the  other  ward  defendant,  is  not  multifarious. 

Cause  removed  from  the  Court  of  Equity  of  Polk  county. 

The  bill  is  filed  in  the  names  of  John  C.  Camp  and  Columbus 
Mills  against  William  S.  Mills  and  William  A.  Mooney  and 
Sarah  Louisa,  his  wife,  alleging  that  John  C.  Camp  and  Sa- 
rah Louisa  Mooney,  are  the  only  surviving  children  and  heirs- 
at-law  of  James  T.  Camp,  who  died  intestate,  in  the  year 
1841,  and  that  the  plaintiff,  Columbus  Mills,  and  the  defend- 
ant, William  S.  Mills,  became  their  joint-guardians,  and  en- 
tered into  a  joint-bond  in  the  sum  of  $20,000,  witlTGovaQ 
Mills  as  their  surety  ;  that  the  defendant,  William  S.  Mills, 
took  possession  of  the  property  O'f  the  wards,,  consisting  of 
lands  and  slaves — rented  out  the  land  and  received  the  rents, 
and  hired  out  the  slaves  and  received  the  hires,  during  the 
whole  period  of  the  minority  of  the  said  wards,  and  that  the 
said  Columbus  Mills  did  not  at  all  interfere  in  the  manage- 
ment of  the  wards,  or  their  estates,  or  the  incomes  thereof. 
The  bill  states  that  the  said  Sarah  Louisa  intermarried  with 
the  defendant,  William  A.  Mooney,  in  the  year  1857,  and  the 
plaintiffs  are  ignorant  whether  anj'  settlement,  partial  orcom- 
plete,  was  ever  made  between  her  and  her  husband  and  the 
said  W,  S,  Mills ;  that  the  plaintiff  J.  C,  Camp,  became  of 
age  in  the  year  1851;  that  they  are  ignorant  as  to  what 
amount  of  i-fents,  hires,  and  other  es-tate  of  the  wards,  cam© 


JUNE  TEEM,  1862.  275 

Camp  V.  Mills. 

into  the  hands  of  the  said  W.  S.  Mills,  and  the  prayer  of  the 
bill  is  for  a  discovery  and  for  an  account  as  to  both  of  the 
wards,  so  that  the  })laintiff,  J.  C.  Camp,  may  recover  what  is 
due  to  him,  and  the  other  plaintiff  may  be  discharged  of  his 
liability  on  account  of  his  joint-guardianship  with  the  defend- 
ant, W.  S.  Mills,  both  as  guardian  for  the  plaintiff,  John  C, 
and  for  the  defendant,  Sarah  Louisa  Mooney. 

To  this  bill,  the  defendant,  W.  S.  Mills,  demurred  on  ac- 
count of  multifariousness. 

The  cause  was  set  for  argument  on  the  demurrer,  and  sent 
to  this  Court  to  be  heard. 

J)ickso7i,  for  the  plaintiffs. 

Shij)})  and  Philli2)s,  for  the  defendants. 

Battle,  J.  It  appears  from  the  bill  that  the  plaintiff',  Co- 
lumbus Mills,  and  the  defendant,  William  S.  Mills,  were,  in 
the  year  1S42,  duly  appointed  joint-guardians  to  the  plaintiffs^, 
John  C.  Camp,  and  the  feme  defendant,  Sarah  Louisa  Camp, 
and  to  secure  the  faithful  discharge  of  the  duties  of  their  of- 
fice, gave  a  joint-bond  in  the  penal  sum  of  $20,000.  If,  after 
the  marriage  of  the  female  ward,  and  the  coming  of  age  of 
her  brother,  the  other  ward,  a  suit  in  equity  were  necessary 
for  calling  for  an  account  from  their  guardians,  we  can  see 
nothing  to  object,  but  much  to  approve  in  having  it  <ione  in 
one,  instead  of  two  or  more  suits.  It  is  manifest  that  a  bill 
might  have  been  filed  in  the  name  of  both  wards,  as  plaintiffs, 
against  both  guardians,  as  defendants,  in  which  the  respec- 
tive rights  of  each  plaintiff',  and  the  liabilities  of  each  defend- 
ant could  have  been  ascertained,  upon  which  a  decree  might 
liave  been  founded  to  secure  such  rights,  and  enforce  such 
liabilities  with  exact  justice  to  each  and  all  the  parties.  If 
one  of  the  wards  had  declined  to  become  a  plaintiff,  he  or  she 
might  have  been  made  a  defendant,  together  with  the  guar- 
diaus,  and  the  same  result;  might  have  been  obtained.  To  a 
bill  in  either  form,  it  is  certain  that  the  objection  of  multifa- 
riousness would  not  apply.     Such  objections  iijay  be  devided 


276  IN  THE  SUPREME  COURT. 

Chambers  v.  Payne. 

into  three  classes  of  eases :  1st,  tliose  in  whicli  there  are  differ- 
ent persons  phiiiitiffs  or  defendatits,  of  which  some  have  no  kind 
of  privity  with  others.  2ndly.  Those  in  which  the  same  party 
sues  or  is  sued  ^n  different  capacities.  3rdly.  Those  in  which 
the  parties  are  the  same,  and  they  sue  and  are  sued  in  the 
same  capacities,  but  several  and  distinct  subjects  are  brought 
into  question. 

The  present  case  is  clearly  excluded  from  either  class;  for 
there  is  no  party  that  has  no  kind  of  privity  with  the  others; 
there  is  none  that  sues  or  is  sued  in  different  capacities, 
and  there  are  no  several  and  distinct  subjects  brought  into 
question.  See  Calvert  on  Parties  to  suits  in  equity,  89  ;  (17 
Law  Lib.  52.) 

It  only  remains  to  see  whether  making  one  of  the  guardi- 
ans a  plaintiff  instead  of  a  defendant,  varies  the  case,  and  we 
think  it  does  not.  If  the  allegations  of  the  bill  are  true,  as 
by  the  demurrer  they  are  admitted  to  be,  no  relief  is  sought 
against  Columbus  Mills,  and~  there  is  no  necessity  that  he 
should  have  a  decree  against  either  of  the  parties.  He  is  a 
necessary  party  to  the  suit,  in  order  that  he  may  be  bound  by 
the  final  decree  in  the  cause,  and  he  will  be  equally  bound^ 
•whether  he  be  a  plaintiff  or  a  defendant;  see  Wilhins  v.  Fry^ 
1  Mer.  Rep.  262.  It  follows  that  the  bill  is  not  multifarious, 
and  the  demurrer  must  be  over-ruled. 

» 
Per  Curiam,  Demurrer  over-ruled. 


EDWARD  R.  CHAMBERS,  Administrator,  against  CHARLES  L.  PAYNE 

and  others. 

A  bequest  of  slaves  to  one,  for  life,  with  a  limitation  over  to  his  or  her  chil- 
dren equally  to  he  divided,  is  not  controlled  b}'  the  rule  in  Shelly's  case,  but 
confines  the  interest  of  the  first  taker  to  his  or  her  life. 

Where  children  take  as  a  class  at  the  expiration  of  a  life-estate,  each  child 


JUNE  TERM,  1862.  277 


Chambers  v.  Payne. 


takes  a  vested  interest  at  its  birth,  subject  to  be  partially  divested  in  favor 
of  the  other  children  of  the  class  as  they  are  born,  and  upon  the  death  of 
one  of  the  children  during  the  existence  of  the  life-estate,  his  or  her  inter- 
est goes  to  his  or  her  representative,  and  not  to  ulterior  liraitees  dependant 
on  the  first  taker's  dying  without  issue.         ^ 

Cause  removed  from  tlie  Court  of  Equity  of  Davidson  county. 
Simon  Williams,  in  the  year  1809,  bequeathed  as  follows: 
"I  lend  unto  my  son,  Alanson  ^  illiams,  and  my  son-in-law, 
Anthony  Sale,  in  trust,  for  the  only  use  and  benefit  of  my 
daughter,  Betsy  Payne,  during  her  natural  life,  against  the 
claim  or  contract  of  her  present  or  any  future  husband,  the 
following  negroes  and  their  future  increase:  Thena  and  her 
two  children,  (the  names  not  known,)  David,  Ransom,  and 
Revey  ;  my  will  and  desire  is,  tiiat  the  negroes  and  their  t\\- 
tnre  ii^'^-case,  lent  to  my  son,  Alanson  Williams,  and  Antho- 
ny Sale,  in  trust,  for  the  use  and  benefit  of  my  daughter,  Bet- 
sy Payne,  against  the  claim  or  contract  of  her  present  hus- 
band or  husbands,  during  her  natural  life,  shall  be  equally 
divided  among  the  heirs  of  her  body  forever;  but  for  want  of 
such,  my  will  and  desire  is,  that  the  said  negroes  and  their 
future  increase  be  equally  divided  among  my  other  chil- 
dren or  their  representatives."  Betsy  Payne,  the  legatee, 
herein  mentioned,  received  the  slaves  bequeathed  and  kept 
them  until  the  year  1857,  when  she  died,  having  disposed  of 
the  said  slaves  and  their  increase,  (now  very  numerous,)  by 
her  last  Avill  and  testament.  The  said  Betsy  Payne  had  one 
child  which  died  in  its  infancy,  many  years  before  her  death, 
and  never  had  any  other.  The  plaintifis  are  the  brothers  and 
sisters  of  Betsy  Payne  and  t'lcir  representatives,  and  claim  by 
virtue  of  the  limitation  over,  after  the  death  of  Mrs.  Payne. 
The  defendants  claim  under  the  will  of  Betsy  Payne.  The 
cause  was  heard  on  bill,  answer,  proofs  and  exhibits. 

J^.  F.  Moore,,  for  the  plaintiffs. 
Fowle  and  Kittrell,  for  the  defendants. 

Battle,  J.     Had  the  testator's  daughter,  Mrs.  Payne,  pass- 


278  IN  THE  SUPKEME  COURT. 

Chambers  v.  Payne. 

ed  through  life  without  having  had  a  child,  we  should  not 
have  hesitated  to  hold  that  the  claim  of  the  other  children  of 
the  testator,  and  their  representatives  under  the  ulterior  limita- 
tion to  them,  would  not  have  been  prevented  b}^  tlie  operation  of 
the  rule  in  Shelly 's  case,  in  her  favor.  That  rule  would  have  been 
excluded,  either  upon  the  principle  adopted  by  the  Court  in  the 
case  of  Payne  v.  Sale^'2,J)ey.  and  Bat.  Eq.  455,  on  the  construc- 
tion of  the  same  will,  which  we  have  nov\^  before  us,  or  upon 
that  of  Sioain  v.  Boscoe,  3  Ire.  200.  The  counsel,  for  the  de- 
fendant, has  ventured  to  call  in  question  the  propriety  of  the 
decisions  in  both  these  cases,  and  has  suggested  reasons  and 
produced  authorities  to  show  that  they  would  have  been  rul- 
ed otherwise  by  the  English  courts,  but  we  do  not  feel  at  lib- 
erty to  impeach  them.  Indeed,  the  principle  of  the  latter 
case  has  been  since  confirmed,  and  must  be  considered  now 
as  a  settled  rule  of  construction  in  this  State.  Under  that 
princij)le,  we  hold  that  Mrs.  Payne  took  a  life-estate  only  in 
the  property  bequeathed  to  her. 

We  come  now  to  consider  the  case  in  the  event  which 
happened  :  that  siie  bore  a  living  child,  which,  however,  died 
in  her  life-time.  Did  that  child  take  any  interest  in  the  pro- 
perty, under  the  limitation,  after  her  life-estate,  "  to  be  equal- 
ly divided  among  the  heirs  of  her  body  forever."  The  an- 
swer to  this  question  is  to  be  found  in  the  rulings  of  the  Court 
in  Swain  v.  Eascoe.  uhi  supra;  Evans  v.  Lea^  5  Ire.  Eq.  169; 
Knight  v.  Wall,  2  Dev.  and  Bat.  Rep.  125 ;  Sanderlin  v. 
Deford,  2  Jones'  Rep.  74,  and  several  other  cases,  including 
Mason  v.  White,  decided  at  the  present  term.  (See  8  Jones' 
Report  421). 

From  these  cases,  it  will  clearly  appear  that  in  bequests  of 
personal  property,  like  the  present,  heirs  of  the  body,  mean 
children  ;  that  when  children  take,  as  a  class,  at  the  expira- 
tion of  a  life-estate,  each  child  takes  a  vested  interest  at  its 
birth,  subject  to  be  partially  devested  in  favor  of  the  other 
children  as  they  are  born,  and  that  upon  the  death  of  one  of  the 
children  during  the  existence  of  the  life-estate,  his  or  her  in- 
terest goes  to  his  or  her  representative,  and  does  not  devolve 


JUNE  TEEM,  1862.  279 


Chambers  v.  Payne. 


upon  the  other  children  by  virtue  of  the  limitation,  unless  an 
intention  to  that  effect  is  manifested  in  the  will. 

Assuming  then,  as  we  must,  that  Mrs.  Payne's  child  took 
a  vested  interest  in  the  property  as  soon  as  it  was  born,  the 
next  enquiry  is,  what  was  the  extent  of  that  interest.  It  could 
be  none  other  than  the  absolute  interest  which,  of  course,  ex- 
cluded the  ulterior  limitation  to  the  testator's  own  children. 
This  will  appear  from  many  cases  in  our  own  Eeports,  and 
particularly  from  that  of  Sanderlin  v.  Deford^  uhi  supra^ 
where  the  subject  is  more  fully  discussed  than  in  most  of  the 
others.  Upon  the  death,  then,  of  Mrs.  Payne's  child,  the 
vested  interest,  which  it  took  in  the  legacy,  devolved  upon  its 
personal  representative,  from  whom  Mrs.  Payne,  or  her  hus- 
band, took  it  as  her  child's  sole  next  of  kin. 

The  only  case  to  which  the  counsel,  for  the  plaintiff,  in  the 
able  argument  which  he  submitted,  has  referred  us,  which  at 
all  impugns  any  of  the  principles  we  have  stated,  is  that  of 
Jarvis  v.  Wyait^  4  Hawks,  227.  Of  that  case,  it  is  only  ne- 
cessary for  us  to  remark,  that  the  point  decided  may  be  sup- 
ported by  the  peculiar  language  of  the  will,  or  if  it  cannot  be 
supported  on  that  ground,  it  must  be  considered  as  having 
been  over-ruled  by  the  numerous  cases  since  adjudicated  upon 
that  point,  to  several  of  which,  we  have  already  referred. 

Believing  that  the  bii  th  of  Mrs.  Payne's  child  defeated  the 
ulterior  limitation  under  which  the  plaintiffs  claim,  it  is  un- 
necessary for  us  to  notice  particularly  the  objection  that  that 
limitation  is  too  remote,  and,  therefore,  void.  The  case  of 
Sanderlin  v.  Deford,  already  referred  to,  would,  if  its  aid 
were  necessary,  be  a  strong  authority  in  favor  of  such  objec- 
tion. There,  the  form  of  expression  in  the  will,  "  for  want  of 
such  heirs,"  is  almost  identical  with  that  in  the  will  now  be- 
fore us,  and  it  was  said  by  the  Court,  that  if  the  will  had  been 
made  before  act  of  1827,  (as  the  present  will  was,)  the  limita- 
tion would  have  been  too  remote.  But  it  is  needless  to  en- 
large upon  this  question  as,  for  the  reasons  given  ujion  anoth- 
er part  of  the  case,  we  are  of  opinion  that  the  plaintiffs  have 


280  IN  THE  SUPREME  COURT. 


Chambers  v.  Kerns. 


no  claim  to  the   property  in  dispute,  and  their  bill  must  be 
dismissed  with  costs. 

Pee  Curiam,  Bill  dismissed. 


JOSEPH  F.  CHAMBERS,  Executor,  against  JOHN  B.  KERNS  and  others. 

Ad  executor  is  not  liable  for  interest  on  money  collected  by  him,  unless  he 
receives  interest  on  the  same. 

Where  an  intended  legacy  of  a  tract  of  land  was  sold  by  the  testator,  and  a 
bond  given  by  him  to  make  title,  which,  however,  was  not  done  in  his 
life-time,  it  was  held  that  the  intended  legatee  had  no  claun  upon  the  pro- 
ceeds of  a  note  taken  by  the  testator  for  the  purchase-money  of  the  land. 

Cause  removed  from  the  Court  of  Equity  of  Rowan  county. 

The  bill  was  filed  by  the  executor  of  Peter  Kerns,  praying 
for  instruct  ions  as  to  the  discharge  of  his  duty  under  the  will, 
and  for  an  account  and  settlement  of  the  estate  in  his  hands, 
by  a  decree  of  the  Court  of  Equity  for  his  protection,  &c. 

A  reference  was  made  to  L.  Blackmer,  Esq.,  as  a  commis- 
sioner, to  state  the  account  with  the  executor,  which  was  sta- 
ted, and  was  excepted  to  in  two  particulars — one  of  which  was 
that  the  commissioner  had  charged  the  executor  witii  intei-est 
on  money  collected  by  him  and  held  for  distribution.  The 
other  exception  was  that  the  commissioner  refused  to  pass  in- 
to the  residuary  fund  a  note  given  by  Fisher  and  others  for  a 
certain  tract  of  land,  which,  in  his  will,  written  before  tliat. 
time,  was  devised  to  John  B.  Kerns.  On  the  sale  of  this  land, 
the  testator,  Peter  Kerns,  gave  Messrs.  Fisher,  Craige,  JSTes- 
bit,  and  Daniel  Kerns,  a  bond  to  make  them  a  title  on  the 
payment  of  the  purchase-monej^,  and  took  their  joint-note  for 
$2500.  It  was  contended  before  the  commissioner,  that  as  the 
land,  for  which  the  note  was  given,  was  intended  for  John  B. 
Kerns,  in  the  will  of  Peter  Kerns,  he  should  have  the  pro- 


JUNE  TERM,  1862.  281 

Chambers  v.  Kerns. 

ceeds  of  the  note  taken  for  the  same,  and  that  it  should  not 
fall  into  the  residnum,  and  the  commissioner  so  held — for 
which  Caldwell  and  wife  and  other  residuary  legatees  except- 
ed. The  cause  was  set  iown  for  argument  on  the  exceptions 
and  sent  to  this  Court. 

B.  A.  Caldwell,  for  the  plaintiffs. 

J.  E.  Kerr  and  Boi/den,  for  the  defendants. 

Peakson,  C.  J,  The  exception  in  respect  to  the  note  of 
Fisher  and  others,  for  $2500,  given  to  secure  the  pi  ice  of  a 
tract  of  land,  sold  to  them  by  the  testator,  is  allowed. 

By  a  residuary  clause,  the  testator  directs  "  the  money  on 
hand  and  the  money  arising  from  the  collection  of  my  honds^ 
notes  and  accounts,  be  equally  divided  between  my  wife, 
Fanny,"  &c.  These  words  include  the  note  of  "Fisher  and 
others,''  and  the  question  is,  on  what  ground  should  this  note 
be  taken  out  of  the  express  words  of  the  residuary  legacy? 
The  ground  assigned  is,  that  tins  note  was  given  as  the  con- 
sideration of  a  tract  of  land,  which,  by  the  3rd  clause  of  the 
will,  is  devised  to  John  B.  Kerns,  and  vrhich  the  testator,  af- 
ter the  execution  of  the  will,  sold  to  "  Fisher  and  others," 
giving  his  bond  for  title  when  the  purchase-money  was  paid. 

We  confess  we  are  unable  to  see  the  force  of  this  position. 
Suppose  the  testator,  when  he  sold  the  land,  had  been  satis- 
fied with  the  security  of  the  note  and  passed  the  title  by  mak- 
ing a  deed  to  "  Fisher  and  others,"  Jolm  B.  Kerns  would  not, 
most  manifestly,  have  been  entitled  to  the  note.  r>ecause  the 
sale  of  the  land,  devised  to  him,  was  a  revocation  of  the  de- 
vise. The  fact  that  the  testator  did  not  see  proper  to  make  a 
deed  to  Fisher  and  others,  but  chose  to  retain  the  title  as  se- 
curity for  the  payment  of  the  note,  does  not,  in  any  way,  alter 
the  case  in  respect  to  this  question  of  revocation  ;  for  the  plain 
reason,  that  in  the  one  case  as  well  as  in  the  other,  he  had 
ceased  to  be  the  owner  of  the  land  which  was  the  subject  of 
the  devise. 

It  is  a  familiar  principle  of  equity^  acted  upoc  every  day, 


282  IN  THE  SUPREME  COURT. 

Chambers  v.  Kerns. 

— „» — 

i.  e.j  by  a  contract  to  sell  land,  the  purchaser  becomes  the 
owner  and  the  vendor  holds  the  title  in  trust  for  him  on  pay- 
ment of  the  purchase-money ;  so  that  any  appreciation  of  the 
value  is  the  gain  of  the  purchaser,  ^d  any  depreciation  (by 
burning  of  the  buildings,  &c.)  is  his  loss.  In  other  words,  the 
effect  of  a  contract  of  sale  is  to  make  the  vendee  the  owner 
of  the  land,  the  title  being  retained  by.  the  vendor  as  a  secu- 
rity for  the  purchase-money. 

These  are  well-settled  principles  of  law,  and  if  by  their  ap- 
plication the  intention  of  the  testator  is  disappointed,  the 
Coni-t  can  say  it  is  not  the  fault  of  the  law,  but  the  neglect  of 
the  testator  in  not  adding  a  codicil  to  set  out  his  intention, 
made  necessay  by  the  alteration,  in  the  condition  of  his  estate, 
caused  b}^  his  act  of  selling  the  tract  of  land  devised  to  John 
B.  Kerns  ;  see  Gillis  v.  Harris^  decided  at  this  term,  (ante 
267). 

Whether  the  purchasers  of  land  in  a  bill  for  the  specific 
performance  on  payment  of  their  note,  must  call  for  a  con- 
veyance from  the  heirs-at-law  of  the  devisor,  or  from  the  de- 
visee, is  a  question  not  now  presented  ;  it  is  certain  that  the 
title,  no  matter  whether  it  has  descended  to  the  heirs-at-law, 
or  passed  under  the  will  to  the  devisee,  is  held  merely  as  a 
security  for  the  payment  of  the  purchase-money,  and  that  the 
ownership  and  beneficial  estate  vested  in  the  purchasers  by 
force  of  the  contract  of  sale,  and  the  legal  title  is  held  in  trust 
for?them  on  payment  of  the  purchase-money. 

The  exception,  in  respect  to  the  charge  of  interest,  is  allow- 
ed so  far  as  there  is  a  charge  of  interest  for  cash  on  hand. 
An  executor  is  not  expected  or  allowed  to  invest  cash  on  hand 
so  as  to  make  interest,  and  is  not  chargeable  for  interest,  un- 
less it  be  proved  that  he  has  made  interest.  Of  course,  he  is 
chargeable  with  interest  on  the  sale  notes  from  the  time  they 
fell  due,  as  he  is  presumed  to  have  collected  it  on  all  such  notes 
as  were  not  promptly  paid. 

Per  Cueiam,      The  account  will  be  reformed  accordingly. 


JUNE  TEEM,  1862.  283 


Ray  V.  Scott. 


BENTON  RAT,  Adm\.,  and  others  agaimi  EDWARD  M.  SCOTT  and 

others. 

A  suit  in  equity  seeking  to  set  aside  a  deed,  because  of  incapacity  on  the  part 
of  the  bargainor,  and  fraud  and  imposition  on  the  part  of  the  bargainee,  is 
not  for  the  same  matter  as  one  alleging  that  a  deed  was  intended  to  be  on- 
ly a  contract  to  convey  on  payment  of  the  purchase-money,  and  was  erro- 
neously worded,  because  of  the  ignorance,  mistake  or  fraud  of  the  drafts- 
man, and  a  plea  alleging  the  matter  of  the  former  suit  in  bar  of  the  second, 
was  over-ruled. 

Cause  removed  from  the  Court  of  EqnityTof  OrangeTconnty. 
The  bill  alleges  that  Moses  Leathers  agreed  with  the  de- 
fendant, Scott,  that  he  would  sell  him  the  tract  of  land,  in 
question,  lying  on  Eno  river,  at  the  price  of  $2000,  whenever 
the  purchase-money  for  the  same  was  paid  to  him,  and  that 
such  purchase-money  was  to  be  paid  within  thirty  days  there- 
after, and  that  the  parties  proceeded,  as  he  supposed,  to  re- 
duce this  contract  to  writing,  and  that  a  writing  was  then  and 
there  prepared  by  the  defendant,  Edward  M.  Scott,  which  he 
supposed  was  an  instrument  embracing  the  terms  of  their  con- 
tract as  above  set  out,  but  that  in  fact  and  in  truth,  the  instru- 
ment was  an  absolute  conveyance  of  his  land  to  the  said  Scott 
in  fee  simple :  that  this  departure  was  by  the  mistake,  ignor- 
ance or  fraud  of  such  draftsman  ;  that  the  instrument  in  ques- 
tion is  not  formal  in  its  terms,  and  was  well  calculated  to  mis- 
lead Leathers,  wlio  was  himself  ignorant  and  unacquainted 
with  the  business  of  conveyancing ;  that  Scott  paid  him  no 
money  then,  nor  has  he  since  paid  him  any ;  that  the  said 
Scott  was  well  known  to  him  to  be  at  the  time  utterly  insolv- 
ent, and  that  he  never  would  have  thought  of  selling  him  his 
only  tract  and  homestead  without  some  security  for  the  pur- 
diase-money.  The  bill  further  alleges,  that  the  said  Scott  has 
conveyed  the  land,  in  question,  to  the  defendant,  Webb,  as  a 
trustee,  to  secure  tlie  debts  of  the  other  defendants,  Sims  and 
the  McCawns,  and  that  they,  had  notice  of  Leathers'  equita- 
ble claim ;  that  the  said  trustee  has  sued  him  in  an  action  of 
ejectment  and  tlireatens  to  turn  him  out  of  possession.     The 


284  IN  THE  SUPKEME  (!50URT. 

Ray  V.  Scott. 

prayer  is,  that  the  deed,  in  question,  may  be  reformed,  and 
that  it  may  stand,  as  it  was  intended  to  be,  a  bond  to  sell  and 
convey  the  land,  in  question,  to  the  said  Scott  on  the  payment 
of  the  purchase-money,  and  that 'the  defendants  may  be  en- 
joined from  proceeding,  at  law,  ^o  oust  him  of  his  possession, 
and  for  general  relief. 

■  This  suit  was  originally  instituted  in  the  name  of  Moses 
Leathers,  but  his  death  having  been  suggested,  Benton  Ray, 
>  his  administrator,  and  the  children  and  heirs-atjaw  of  the 
said  Moses,  by  their  next  friend,  the  said  Benton  Ray,  were 
made  parties  plaintiff.  The  defendants  pleaded  in  bar  that 
the  plaintiff's  intestate.  Leathers  had,  before  the  commence- 
ment of  this  suit,  brought  suit  in  the  court  of  equity,  alleging 
that  Scott  and  Sims,  being  both  very  desirous  of  getting  his 
land,  came  to  his  house,  and  finding  him  in  a  debauch  of  sev- 
eral days  duration,  when  he  was  totally  unfit  to  make  a  con- 
tract, persuaded  him  to  sign  a  paper,  the  contents  of  which, 
he  was  too  drunk  and  stupified  to  know  and  understand,  but 
which  turned  out  to  be  a  deed  in  fee  simple  to  Scott  for  his 
land  for  $2000,  which  it  was  expressed  in  the  said  instrument, 
the  said  Scott  was  thereafter,  to  pay  ;  that  the  land  was  after- 
wards conveyed  by  Scott,  in  trust,  for  the  benefit  of  Sims  and 
the  McCawns,  and  that  the  whole  transaction  was  in  pursu- 
ance of  a  fraudulent  combination  between  Scott,  Sims  and 
John  and  William  McCawn,  the  prayer  of  which  former  bill, 
is  slated  to  be  for  a  declaration  that  such  deed  is  void  for  the 
fraud,  and  that  it  be  surrendered  for  cancellation.  The  plea 
avers  the  identity  of  the  parties  and  of  the  cause  of  action, 
and  concludes  in  bar  of  the  said  suit. 

The  cause  was  set  for  argument  on  the  bill  and  plea  of  de- 
fendants. 

Graham,  for  the  plaintiffs. 
Phillips,  for  the  defendants. 

Peakson,  C.  J.     The  only  question  presented  is  this  :  tak- 
ing the  matters  alleged  in  the  plea  to  be  true,  is  the  equity 


JUXE  TEEM,  1862.  285 


Ray  V.  Scott. 


which  the  plaintiff  seeks  to  set  up  by  their  bill  now  filed,  the 
same  as  the  equity  which  the  intestate  attempted  to  set  up  in 
the  first  bill,  and  which  was  adjudged  against  hijn :  in  other 
words,  does  tiiis  bill  seek  to  enforce  the  very  cqult'j  M'hich  has 
been  adjudged  and  decided  by  the  decree  in  the  first  suit. 

Upon  this  argument  the  Court  is  confined  to  the  matters 
alleged  in  the  bill  and  the  matters  set  out  in  the  plea,  and  for 
this  reason,  very  great  particularit}'-  is  required  in  framing  the 
plea.  Without  deciding  whether  this  plea  is  informal  in  this, 
that  it  does  not  set  out,  in  so  many  words,  the  bill  in  the  first 
case,  and  does  not  set  out  the  decree  in  that  case,  but  simply 
states  the  substance  and  efi'ect  and  material  parts  of  the  bill 
and  decree,  we  put  our  decision  on  the  ground  that  the  equi- 
ties are  not  the  same,  and  that  the  equity  of  the  bill,  now  be- 
fore us,  was  not  adjudged  by  the  former  decree. 

The  equity,  which  the  bill  seeks  to  set  up  is,  that  the  intes- 
tate of  the  plaintifis,  having  made  a  contract  to  sell  his  land 
to  the  defendant,  Scott,  the  intention  was  to  reduce  the  con- 
tract of  sale  to  writing,  and  in  drafting  the  writing,  either 
by  the  mistake  or  the  ignorance  or  the  fraudulent  design  of 
the  draftsman,  who  was  the  defendant,  Scott,  the  paper  was 
so  worded  as  to  be  a  conveyance  of  the  land  instead  of  a  con- 
tract to  convey  on  the  ))ayment  of  the  purchase-money. 

Tiie  equity  of  the  first  bill  was,  that  the  plaintiffs'  intestate 
never  intended,  either  to  convey,  or  to  contract  to  convey,  his 
land,  and  tiiat  he  was  induced  to  sign  and  execute  the  paper, 
at  a  time  when,  from  the  eflTects  of  drinking,  he  was  incapa- 
ble of  making  a  contract,  and  so  the  deed  was  obtained  from 
him  by  fraud,  and  was  void  by  reason  of  his  incapacity. 

These  equities  are  wholly  distinct  and  different :  The  first 
bill  would  have  made  the  deed  void  and  of  no  effect,  against 
all  persons,  either  as  a  contract  to  convey,  or  as  a  conveyance 
of  the  estate,  or  any  part  of  it.  This  bill  seeks  to  make  the 
deed  void  as  a  conveyance,  but  establishes  it  as  a  contract  to 
convey  upon  the  payment  of  the  purchase-money.  Let  the 
plea  be  over-ruled  and  the  d^endants  be  required  to  answer. 

Per  Curiam,  -  Plea  over-ruled. 

3 


286  I^  THE  SUPREME  COURT. 

Quickel  v.  Henderson. 

CAIPHAS  QUICKEL  and  another  against  C.  C.  HENDERSON  and  others. 

A  bond  to  inflemnify  the  surety  of  A  against  all  notes,  bonds,  &c.,  signed  arid 
entered  into  for  B,  extends  to  notes,  bonds,  &c.,  signed  and  entered  into 
for  B  &  Co. 

This  cause  was  removed  from  the  Court  of  Equity  of  Lin- 
coln county. 

The  testator  of  the  plaintiffs,  Jacob  Killian,  was  the  credit- 
or of  Barrett  &  Co.,  by  a  note  signed  by  Barrett  &  Co.,  as 
principals,  and  J.  A.  Ramsour  as  surety,  upon  wliich  suit  was 
brought,  judgment  obtained,  and  execution  issued  against 
each  of  the  partnera  and  against  the  surety,  and  returned  nul- 
la hona,  and  it  was  admitted  that  these  parties  were,  and  still 
are  insolvent.  After  this  note  was  given,  to  wit,  in  1857,  the 
plaintiff,  Ramsour,  for  Iiis  indemnity  against  the  liabilities  he 
had  incurred  for  E.  S.  Barrett,  took  a  penal  bond  in  the  sum 
of  $20,000,  with  the  other  defendants,  Briggs,  Hoyle  and 
Henderson,  as  sureties,  payable  to  him,  the  said  Jacob  A. 
Ramsour,  and  conditioned  as  follows :  "  Whereas,  the  said 
Jacob  A.  Ramsour  hath  heretofore  bound  himself  by  bills, 
bonds  and  notes,  for  the  payment  of  various  sums  of  money, 
as  the  security  of  Elisha  S.  Barrett,  now,  therefore,  if  the 
above  bounden,  E.  S.  Barrett,  shall  well  and  truly  pay  off/ 
and  discharge  each  and  ever}^  of  the  said  bills,  bonds  and 
notes,  in  and  by  which  the  said  Jacob  A.  Ramsour  is  bound, 

as  aforesaid,  for  the  said  E.  S.  Barrett,  on  or  before  the 

day  of  185  ,  or  shall  on  or  before  the  da}^  aforesaid,  in  any- 
wise discharge  and  save  harmless  the  said  Jacob  A.  Ramsour 
from  any  and  all  liabilities,  debts,  contracts  or  charges,  for  or 
on  account  of  all  said  bills,  bonds,  and  notes,  then,  the  above 
obligation  to  be  void,  otherwise  to  remain  in  full  force." 
Signed  by  E.  S.  Barrett,  B.  F.  Briggs,  C.  C.  Henderson  and 
L.  A.  Hoyle,  with  their  seals  affixed,  and  delivered  to  the  said 
Ramsour. 

The  plaintiffs  called  on  these  obligors  to  indemnify  Ram- 
sour, the  obligee,  by  paying  tnis  note  to  the  executor  of  Ja- 
cob Killian,  but  this  was  refused,  on  the  ground,  that  as  J.  A. 


JUNE  TERM,  186^.  287 

Quickel  v.  Henderson. 

Rarasour  is  insolvent  and  cannot  pay  anj^  thing,  therefore,  he 
cannot  be  damnified,  and  again,  for  that  the  indemnity  ex- 
tends only  to  liabilities  incurred  by  E,  S.  Barrett,  and  not 
such  had  been  incurred  for  E.  S.  Barrett  &  Co.  The  de- 
fendants demurred,  and  the  cause  being  set  down  for  argu- 
ment on  the  demurrer,  was  sent  to  this  Court. 

jFoiole,  for  the  plaintiffs. 

No  counsel  for  the  defendants  in  this  Court 

Manly,  J.  Two  grounds  are  relied  upon  to  sustain  the 
demurrer  in  this  case.  ' 

1.  That  there  has  been  no  breach  of  the  conditions  of  the 
bond  by  actual  or  probable  loss  on  the  bond  of  the  complain- 
ant, Ramsour,  and 

2.  That  the  bond  is  for  the  indemnity  of  Ramsour  as  surety 
of  E.  S.  Barrett,  and  does  not  extend  to  cases  in  which  Ram- 
sour is  surety  of  Barrett  &  Co. 

The  first  of  these  grounds  seems  to  be  disposed  of  by  the 
case  of  Ferrer  v.  Barrett^  4  Jones'  Eq.  455,  which  was  a  bill 
similar,  in  all  respects,  to  the  one  before  us,  where  the  same 
ground  of  demurrer  was  taken,  and  after  full  consideration 
over-i'uled.  We  content  ourselves  by  a  reference  to  the  rea- 
soning in  that  case. 

The  second  ground  is  also  untenable.  There  is  nothing  in 
the  language  of  the  bond  to  re-strict  the  indemnity  to  obliga- 
tions in  which  Barrett  is  sole  principal,  and  we  can  perceive 
no  reason  for  such  restriction.  The  individuality  of  co-partners 
is  preserved  and  is  not  merged  as  in  incorporated  societies.— 
Each  is  responsible,  severally,  for  the  debts  of  the  company,  and 
it  is  not  less  the  debt  of  Barrett,  nor  is  Ramsour  less  the  sure- 
ty, because  others,  beside  Barrett,  are  responsible  upon  it  as 
principals. 

The  demurrer  is  over-ruled  with  costs,  and  the  usual  certi- 
ficate should  be  sent  to  the  Court  of  Equity  of  Lincoln  Coun- 
ty. 

Per  Curiam^  Demurrer  over-ruled* 


288  m  THE  SUPEEME  COURT. 


Bowers  v.  Strudwick. 


W.  G.  BOWERS  and  wife,  against  EDMUND  STRUDWICK  cend  others-. 

A  mortgagee  having  agreed  with  the  wife  of  the  mortgagor,  that  wpon  a  part 
of  his  debt  being  satisfied,  he  would  assign  for  her  benefit,  his  interest  m 
the  debt,  and  the  property  mortgaged ;  and  in  pursuance  thereof,  having 
assigned  the  same  to  a  third  person,  held  that  the  assignee  was  entitled  to 
enforce  against  the  wife's  legatees,  an  agreement,  by  which,  at  the  time 
she  was  soliciting  him  to  aid  her  in  securing  the  benefits,  she  engaged  that 
jipon  her  death,  her  interest  in  the  property  mortgaged,  should  besubjected 
to  pay  the  debts  due  to  such  assignee  by  the  mortgagor. 

Cause  removed  from  the  Court  6f  Equity  of  Orange  county. 
The  pleadings  and  evidence  in  this  case,  showed  that  John 
Witherspoon  was  indebted  to  Charles  J.  Shannon,  in  a  sum^ 
which,  in  1853,  amounted  to  about  $5,500,  and,  that  to  se- 
cure it,  he  had,  in  1837,  given  a  mortgage  upon  sundry  slaves. 
In  1853,  he  was  also  indebted  to  Edmund  Strudwick,  in  the 
sum  of  about  $5,000,  which  had  accumulated  during  a  period 
of  twenty-five  years. 

In  1853,  Mr.  Shannon  was  induced,  from  friendship,,  to  Mrs, 
Su&fin  Witherspoon,  (wife  of  John  Witherspoon,)  to  consent 
that  if  the  principal  of  his  debt,  (about  $2^750,)  were  paid  or 
secured,  he  would  assign  his  interest  in  the  mortgaged  prop- 
erty for  her  benefit.  At  this  time,  the  slaves  were  worth 
about  $4,500.  Mrs.  Witherspoon,  thereupon,  persuaded  Ed- 
mund Strudwick  to  secure  said  debt,  engaging,  that  if  he 
would  do  so,  she  would  provide,  that  after  her  death,  the  slaves- 
should  be  applied  to  the  payment  of  the  debts  due  to  him,  a& 
above  stated.  Henry  KL  Witherspoon  was  to  join  Strudwick 
in  this  arrangement,  becoming  jointly  bound,  and  sharing  m 
the  benefits ;  but  afterwards,  for  a  reasonable  consideration, 
he  assigned  his  interest  therein,  to  Strudwick.  Thereupon, 
Mr.  Shannon,  the  principal  of  his  debt  having  been  secured, 
through  the  intervention  of  Strudwick,  gave  a  bond  to- the  lat- 
ter, (Henry  K.  Witherspoon  being  connected  with  the  trans- 
action, as  above  set  forth,)  providing  for  the  transfer  to  him  of 
the  debt  and  mortgaged  property,  upon  ih.Q  payment  of  what 


JUNE  TEKM,  1862.  289 


Bowers  r.  Strudwick. 


had  been  secured.  This  payment  was  afterwards  made ;  about 
$1,100  of  it  coming  from  the  means  of  Strudwick. 

Owing  to  some  differences  between  Mrs.  Witherspoon  and 
Strudwi-ek,  the  whole  matter  was  left  to  the  award  of  John 
W.  Norwood,  Esq.,  who,  as  a  preliminary,  ordered  Shannon 
to  convey  the  slaves  to  Strudwick,  and  reserved  the  other 
points  for  further  consideration.  The  conveyance  was  made, 
but,  before  the  arbitrator  had  settl-ed  the  matter,  Mrs.  With- 
erspoon  died,  (early  in  1854,)  having  survived  her  husband 
but  a  short  time.  Thereupon  the  arbitration  came  to  an  end. 
Mi's.  Witherspoon  made  a  will,  under  which  her  daughter 
Mary,  wife  of  the  plaintiff,  William  G.  Bowers,  received  an 
interest  in  her  estate;  and  Strudwick,  qualified  as  Adminis- 
trator, with  the  will  anuexed,  at  August  Term,  1854,  of  Or- 
ange County  Court. 

In  June  1854,  John  K.  Witherspoon,  who  was'duly  author- 
ized to  do  so,  by  all  the  nej:t  of  kin,  and  legatees  of  Mrs. 
Witherspoon,  excepting  the  plaintiff,  Mary,  made  a  set- 
tlement with  Strudwick,  whereby,  in  consideration  that  he  re- 
leased iiis  debts  against  John  Witherspoon,  deceased,  all  the 
slaves  except  Vii-gii  were  transferred  to  said  Strudwick.  Vir- 
gil was,  by  that  arrangement,  reserved  for  .the  use  of  the  com- 
plainant, Mary,  who  was,  at  that  time,  some  twenty-three 
jears  of  age,  but  was  absent  in  Philadelphia.  She  intermar- 
ried with  Iktwers  in  the  latter  part  of  1857. 

The  bill  which  was  filed  t>o  Spring  Term,  1858,  of  the  Court 
of  Equity,  for  Orange  County,  prayed  that  Strudwick  should 
be  declared  a  trustee  of  Mr.  Shannon's  interest  in  the  proper- 
ty mortgaged,  so  far  as  it  had  not  been  exhausted  in  paying 
Mr.  Shannon's  principal  money,  for  the  benefit  of  Mrs.  Witli- 
erspoon's  estate ;  that  the  slaves  should  be  sold,  and  if  there 
were  anything  left,  after  satisfying  the  original  debt  due  Mr. 
Shannon,  it  should  be  paid  to  W.  Gr.  Bowers,  as  Administra 
tor,  of  John  Witherspoon,  deceased,  and  for  other  relief. 

The  cause  was  set  for  hearing,  at  Spring  Term,  1861,  of  Or 
ange  Superior  Court,  and  ordered  to  be  transmitted  to  the 
Supreme  Court 


990  m  THE  SUPKEME  COUKT. 

Bowers  v.  Strudvvick. 

Graham  for  the  complainants. 
Phillips  for  the  defendant,  Striidwick. 

Peaeson,  C.  J.  By  the  accumulation  of  interest,  the  mort- 
gage-debt exceeded  the  value  of  the  slaves  ;  so  it  is  assum- 
ed on  both  sides  that  Doctor  Witberspoon's  equity  of  re- 
demption being  of  no  value,  was  abandoned,  and  may  be 
put  out  of  the  consideration. 

The  equity  of  the  plaintiff  is  put  on  the  ground,  that  the 
claim  of  Doctor  Strudwick  to  hold  the  negroes  as  a  security 
for  the  debts  due  to  him  by  Doctor  Witherspoon,  according 
to  the  understanding  and  agreement  made  between  him  and 
.  Mrs.  Witherspoon,  should  not  be  allowed,  because  it  would 
disappoint  the  expectations  of  Mr.  Shannon,  whose  sole  ob- 
ject in  agreeing  to  transfer  the  mortgaged  negroes  on  pay- 
ment of  the  principal  of  his  debt,  and  to  forgive  the  accumu- 
lated interest,  was  to  benefit  Mrs.  Witherspoon  exclusively, 
and  so  the  claim,  made  by  Dr.  Strudwick,  if  allowed,  would 
be  a  fraud  on  Mr.  Shannon. 

The  doctrine  that  a  court  of  equity  will  not  enforce  the  per- 
formance of  an  agreement  made  in  fraud  of  a  third  person,  is 
a  familiar  one,  but  it  is  based  upon  a  very  refined  principle — 
difficult  of  application  to  the  ordinary  transactions  of  life,  and 
is  put  upon  the  ground  of  preventing  j9m^^■ye  and  actual  fraud. 

Our  opinion  is  against  the  plaintiffs.  Mr.  Shannon,  upon 
the  facts  of  the  case,  was  not  the  mere  dispenser  of  a  charity. 
lie  had  a  prudent  regard  to  his  own  interest;  and  the  amount 
of  it  is  this  :  he  was  willing,  in  order  to  avoid  the  necessity  of 
enforcing  his  rights  as  mortgagee,  and  the  embarrassments  to 
which  he  \yould  have  been  subjected  in  taking,  the  negroes  outi 
of  the  possession  of  Dr.  Witherspoon  and  of  Mrs.  Witherspoon, 
owing  to  the  peculiar  relations  of  respect,  «fec,,  existing  be- 
tween them,  to  forgive  the  accumulated  interest  on  his  debt 
and  to  transfer  and  assign  his  right  and  title  under  the  mort- 
gagCj  provided  the  principal  of  his  debt  was  paid  or" security 
for  prompt  payment  was  given  :  with  the  understanding  that 
any  of  the  mortgaged  negroes,  that  could  be  retained  by  this 


JUNE  TERM,  1862.  291 

Bovvers  v.  Strudwick. 

arrangement,  should  be  held  for  the  benefit  of  Mrs.  Wither- 
spoon. 

The  question  is  :  as  Mrs.  Witherspoon,  in  order  to  comply 
with  the  condition  which  Mr.  Shannon  annexed  to  his  boun- 
ty, to.  wit :  the  immediate  payment  or  security  for  the  prompt 
payment  of  the  principal  of  his  debt,  was  under  the  necessity 
of  coming  to  an  understanding  with  Doctor  Strudwick, 
that  if  he  would  enable  her  to  perform  the  condition,  im- 
posed by  Mr.  Shannon,  and  would  allow  her  the  full  use  of 
the  property  during  her  life,  he  should,  after  her  death,  hold 
the  negroes  as  a  security  for  the  debts  due  to  him  by  Doctor 
Witherspoon,  does  the  doctrine  of  preventing  a  fraud  apply 
to  the  case  and  forbid  the  Court  from  allowing  the  agree- 
ment made  between  Dr.  Strudwick  and  Mrs.  Witherspoon 
from  being  acted  on  and  carried  into  effect  by  Dr.  Strudwick, 
who  has  acquired  the  legal  title  ? 

We  are  of  opinion  that  the  doctrine,  that  equity  will  not 
enforce  an  agreement  in  fraud  of  a  third  person,  does  not  ap- 
ply to  the  case. 

Mr.  Shannon  was  generous  in  agreeing  to  forgive  the  accu- 
mulated interest,  but  by  stipulating  that  the  principal  of  his 
debt  must  be  paid,  or  its  prompt  payment  be  secured,  he  gave 
up  the  right  to  be  considered  in  the  light  of  a  mere  dispenser 
of  a  bount_y,  because  he  imposed  a  condition,  and,  of  course, 
expected  that  Mrs.  Witherspoon  would  be  under  the  neces- 
sity of  making  some  agreement,  or  arrangement,  in  respect  to 
the  property,  to  enable  her  to  compl}^  with  the  condition. — 
Doctor  Strudwick,  in  the  exercise  of  a  spirit  of  generosity, 
equal  to  that  of  Mr.  Shannon,  aided  Mrs.  Witherspoon,  and 
enabled  her  to  comply  with  tlie  condition.  What  ground  is 
there  to  support  the  allegation,  that  when  Doctor  Strudwick, 
as  a  condition  to  the  aid  whicii  he  was  about  to  render,  stip- 
ulated that  after  the  full  enjojniient  of  the  property  by  Mrs. 
Witherspoon  during  her  life,  it  should  then  stand  as  a  securi- 
ty for  hh  debts  due  by  Dr.  Witherspoon,  he  perpetrated  a 
fraud  upon  Mr.  Shannon,  and  on  that  account,  should  not  be 
allowed  to  have  the  benefit  of  the  arranfferaent  made  between 


t 
t 


292  IN"  THE  SUPREME  COURT. 

Bowers,  v.  Strudwick. 

him  and  Mrs.  Witherspoon  ?  We  can  see  none,  either  in  law, 
equity  or  morals.  Mr.  Shannon  made  no  stipulation  in  be- 
half of  the  children  of  Mrs.  Witherspoon.  His  object  was, 
after  securing,  without  farther  embai-rassment,  the  payment 
of  the  principal  of  his  debt,  to  secure  to  Mrs.  Witherspoon 
the  full  enjoyment  of  such  of  the  mortgaged  negroes  as  could 
be  saved,  after  a  compliance  with  liis  terms.  These  were 
complied  with,  and  his  obligation  to  transfer  all  of  his  right 
and  title  under  the  mortgage  deed  on  the  payment  of  tlie  res- 
idue of  his  principal  money,  was  absolute,  and  without  any 
declaration  of  trust  in  favor  of  the  children  of  Mrs.  Wither- 
spoon, or  any  other  stipulation  with  a  view  of  restricting  Mrs. 
Witherspoon  from  the  privilege  of  making  an  agreement  ne- 
cessar}^  to  enable  her  to  comply  with  his  terms.  A  paynjent  of 
a  part  of  a  debt  is  not  a  satisfaction  of  the  whole,  as  between 
the  creditor  and  debtor,  bnt  when  a  third  person  comes  in 
and  assumes  the  pa3mient  of  a  part,  in  satisfaction  of  the 
whole,  the  case  is  materially  altered,  and  there  is  then  no 
reason  on  which  the  creditor  can  object  to  an  agreement, 
which  the  debtor  was  under  the  necessity  of  making,  in  order 
to  enable  him  to  pay  the  part  required. 

So,  in  the  view  we  take  of  the  case.  Doctor  Strndwick  has 
not  been  guilty  of  any  ■positive  or  actual  fraud,  so  as  to  enti- 
tle the  plaintiflPs  to  take  the  ground  that  a  court  of  equity 
ought  not  to  allow  him  to  insist  on  the  arrangement,  by  which 
the  negroes,  after  the  full  enjoyment  of  Mrs.  Witherspoon, 
during  her  life-time,  were  to  be  held  by  him  as  a  security  for 
his  debts  ;  but  we  are  satisfied  that  Dr,  Strudwick,  so  far  from 
having  perpetrated  a  fraud,  either  on  Mr.  Shannon  or  the 
children  of  Mrs.  Witherspoon,  has  acted  the  part  of  a  friend, 
and  by  making  himself  liable  to  Mr.  Shannon  for  the  princi- 
pal of  the  debt,  and  thereby  secui-ing  to  Mrs.  Witherspoon 
the  full  enjoyment  of  the  negroes,  embraced  by  the  mortgage, 
has  entitled  himself  to  an  equal  share  of  credit  in  acting  as 
the  friend  of  Dr.  Witherspoon  and  Mrs.  Witherspoon *and  the 
family.  Indeed,  the  equity,  which  the  bill  seeks  to  set  up 
under  cover  of  the  bounty  of  Mr.  Shannon  to  Mrs.  Wither- 


JUIJ^E  TEEM,  1862.  293 

Bowers  v.  Strndwick. 

spoon,  is  based  on  tlie  idea  that  his  intention  was  to  restrict 
her  full  enjoj'ment  in  this  :  Mrs.  Witherspoon  was  not  to  be 
at  libert}'  to  dispose  of  the  negroes,  as  seemed  riirht  to  her, 
according  to  her  convictions  of  justice  and  moral  duty,  but 
she  was  obliged  to  forego  all  such  obligations  and  allow  the 
negroes  to  devolve  on  her  distributees,  under  the  statute  of 
distributions,  unless  she  saw  proper  to  make  a  will  and  give 
them  to  her  children  in  proportions  differing  from  the  man- 
ner in  which  they  would  have  been  entitled  under  the  stat- 
ute. This  ussumption  of  the  right,  on  the  part  of  Mr.  Shan- 
non, to  control  tiie  free  agency  of  Mrs.  Witherspoon  in  dis- 
posing of  the  negroes,  is  inconsistent  with  the  idea  of  making 
her  the  absolute  owner,  and  is  contradicted  by  the  face  of  his 
bond. 

The  effect  of  the  bond  of  Mr.  Shannon,  dated  27th  Decem- 
ber, 1S47,  to  Doctor  Strudwick,  (H.  K.  Witherspoon  having 
released  his  right  under  the  bond,  may  be  put  out  of^he  case) 
was  to  give  Dr.  Strudwick  a  right  to  an  absolute  conveyance, 
by  Shannon,  of  all  his  right  and  title  to  the  negroes  under  the 
mortgage,  on  the  payment  of  $1500.  Strudwick,  under  this 
bond,  had  a  right  to  call  for  an  absolute  conveyance  of  Shan- 
non's title  without  au}'  declaration  of  trust,  either  in  favor  of 
of  Mrs.  Witherspoon  or  of  her  children.  So,  the  deed  execu- 
ted by  Shannon,  in  pursuance  of  the  award  of  Mr.  Norwood, 
was  simply  a  performance  of  the  obligation  imposed  on  Mi'. 
Shanndn  by  his  bond — the  sum  of  $1500  having  been  paid  to 
him. 

Thus,  the  legal  title  passed  to  Dr.  Strudwick,  subject  only 
to  the  parol  trusts,  admitted  by  his  answer,  as  growing  out  of  the 
understanding  between  him  and  Mrs.  Witherspoon  ;  that  is, 
to  allow  Mrs.  Witherspoon  to  have  the  full  use  of  the  negroes 
during  her  life,  and  then  in  trust  as  a  security  to  Dr.  Strud- 
wick for  the  debts  due  him  by  Dr.  Witherspoon,  leaving  a 
resulting  trust  in  favor  of  Mrs.  Witherspoon  after  the  pay- 
ment of  the  debts  due  to  Doctor  Strudwick. 

By  her  will,   Mrs.   Witherspoon    disposes   of  her   interest 


294  .     IN  THE  SUPREME  COURT. 

Bowers  v.  Strudwick. 

among  her  children,  giving  a  part  to  Mrs.  Bowers,  one  of  the 
plaintiffs. 

In  June,  ISS^l,  after  the  death  of  Mrs.  Witherspoon,  all  of 
her  children,  except  the  plaintiff,  Mrs.  Bowers,  made  a  fnll 
settlement  with  Doctor  Strudwick  of  all  matters  growing  out 
of  this  and  other  transactions,  as  appears  by  a  deed  executed 
by  the  parties  of  that  date,  by  which  Doctor  Strudwick  re- 
leases all  of  his  debts,  of  every  kind,  and  takes  the  negroes, 
not  before  disposed  of,  except  Virgil,  as  his  absolute  property. 

Mrs.  Bowers  was  not  a  party  to  this  arrangement,  and  the 
question  is,  has  her  claim,  under  the  bequest  by  her  mother's 
will,  to  set  up  the  resultino;  trust  after  the  satisfaction  of  the 
debts  due  to  Dr.  Strudwick,  been  waived,  or  released,  or  sur- 
rendered in  any  manner. 

It  is  said  this  result  lias  been  effected  b}^  her  acceptance  of 
the  negro,  Virgil,  and  by  several  letters  of  her's  to  Mr.  Nor- 
wood, which  are  exhibited. 

Without  discussing  the  questions,  made  in  respect  to  her  men- 
tal capacity,  it  is  only  necessary  to  say,  that  it  does  not  ap- 
pear that  in  accepting  Virgil,  or  while  writing  the  letters  she 
had  a  full  knowledge  of  her  rights,  and  there  is  no  evidBnce 
that  she  ever  did,  or  said  any  thing  with  an  intent  to  confirm 
the  settlement  made  by  heri)rothers  and  sisters  Math  Doctor 
Strudwick,  and  there  is  nothing  to  show  that  she  did  not  re- 
ceive Virgil,  supposing  him  to  be  a  part  of  her  legacy  under 
her  mother's  will.  The  plaintiffs  have  an  equity  to  redeem 
the  negroes  and  to  set  up  the  resulting  trust  after  the  pay- 
ment of  the  debts  due  by  Dr.  Witherspoon  to  the  defendant, 
Dr.  Strudwick,  and,  to  this  end,  are  entitled  to  an  account,  on 
the  footing,  that  Virgil  is  to  be  considered  part  of  the  proper- 
ty, liable,  in  the  first  instance,  to  the  payment  of  the  debt  of 
Dr.  Strudwick.  So,  they  will  take  an  order  for  an  account, 
or  will  submit  to  have  the  bill  dismissed,  as  they  may  be  ad- 
vised. 

*. 
Pek  Curiam,  Decree  accordingly. 


JUj^E  term,  1862. 


295 


Sealey  v.  Brumble. 


MOORE  T.  SEALEY  against  GILBERT  BRUMBLE  and  JOEL  BRITT. 

Where  land,  which  was  sold  to  A  under  a  mistaken  description,  was  after- 
wards conveyed  by  the  same  owner  to  B  by  a  proper  deed,  for  a  Taluable 
consideration,  without  notice  to  B  of  the  mistake,  it  wa,s  held  that  a  bill  to 
reform  the  former  deed  and  correct  the  error,  would  not  lie  against  either 
A  or  B ;  but  it  appearing  that  A  had  got  paid  for  part  of  the  same  land 
twice,  he  was  not  allowed  to  recover  costs  on  the  dismissal  of  the  bill. 

Cause  removed  from  the  Coni-t  of  Equity  of  Robeson  County. 

N 


W 


E 


S 


One  Isham  Cox,  conveyed  to  defendant,  Gilbert  Urumble, 
the  tract,  described  in  die  plat  annexed,  A,  B,  C,  D,  also,  an- 
other tract  adjoining  Gilbert  Brumble,  who  sold  and  conveyed 
to  one  Ward  a  part  of  the  first  mentioned  titct  purporting  to  be 
100  acres,  by  metes  and  bounds,  as  follows  :  "  First  survey  con- 
taining 100  acres,  begining  at  a  pine,  in  a  meadow,  about  SCO 
yards  south  of  Long  Branch,  (A),  running  south  29  degrees, 
east  179  poles,  to  a  stake,  two  sweet  bays  and  two  water  oaks 
in  the  edge  of  the  ten  mile  swamp,   (B).     Then  north  to  the 


296  IN  THE  SUPREME  COURT. 


Sealey  v.  Brumble. 


iiill  of  the  lo7ig  b)'a7ich,  (E) ',  then  the  various  courses  of  the 
hill  of  the  long  branch,  to  the  upper  line,  (F),  thence  to  the 
beginning,  containing  one  hundred  acres,  be  tlie  same  more  or 
less.  The  plaintift's  allege  that  the  call  of  the  second  line,  B, 
E,  is  a  mistake  in  the  draftsman,  and  should  have  been  :  JV.  61 
JS.  to  the  Mil  of  the  lo7ig  hranch^  which  would  have  carried 
it  to  (G).  The  proofs  show  that  in  the  original  deed  from 
Cox  to  Brumble,  such  was  the  course,  and  that  by  that  course 
the  hill  of  long  branch  was  passed  at  (G) ;  that  by  running 
from  B  to  G,  100  acres  would  be  embraced,  but  that  by  going 
to  E  only  about  50  would  be  the  amount ;  that  Brumble  had, 
for  many  years,  recognized  B,  G,  as  the  line,  and  the  area  B, 
G,  E,  had  been  claimed  by  Ward,  and  tliose.  claiming  under 
him  down  to  the  plaintiff,  Seale}^  whose  deeds  all  followed 
the  one  above  described.  Brumble  sold  all  the  lands  contain- 
ed in  his  deeds  from  Cox,  embracing  the  whole  area,  A,  B,  C, 
D,  to  the  defendant,  Joel  Britt,  not  at  all  noticing  the  part  he 
had  conveyed  to  Ward. 

The  deed  from  Brumble  to  Wai'd,  omits  the  words  of  in- 
heritance, necessar}'  to  convey  a  fee  simple,  which  the  plain- 
tiff also  says,  was  a  mistake,  and  pra3'S  to  have  that  rectified. 

The  plaintiff  alleges  that  he  came  in,  for  a  valuable  consid- 
eration, under  Ward  by  a  lin'6  of  conveyances,  describing  the 
land  .in  the  same  mistaken  terms  as  are  embraced  in  the  deed 
to  Ward. 

The  prayer  is  that  the  mistake  be  corrected  by  the  insertion 
of  tiie  proper  course  from  the  second  corner,  also,  that  the 
deed  may  be  corrected  as  to  the  words  of  inheritance,  and  for 
general  relief. 

Brumble  denies  that  the  mistake  exi^s  as  to  the  course  of 
tiie  second  line,  but  as  to  the  omission  of  the  word,  heirs,  he 
admits  the  mistakef  and  avers  his  willingness  at  all  times,  to 
have  corrected  it, 

Britt  insists  in  his  answer,  that  he  was  a  purchaser  of  both 
these  tracts  of  land  at  a  full  price  witliout  notice,  and  there  is 
no  proof  filed,  that  he  did  have  notice  of  the  equity  of  plain- 
tiff. 


JUNE  TERM,  1862.  297 

Sealey  v.  Brumble. 
The  cause  was  heard  on  bill,  answers,    proofs  and  exhibits. 

Leitch  and  M.  B.  Smith  for  the  plaintiff. 
Shepherd  for  the  defendant. 

Pearson,  C.  J.  Britt  is  a  purchaser  for  valuable  consider- 
ation without  notice  of  the  alleged  mistake.  He  paid  the 
j)rice  and  took  a  deed  for  the  whole  tract,  of  200  acres,  accor- 
ding to  the  original  boundaries,  with  a  warranty  as.  to  the 
whole  tract ;  so  it  is  hard  on  him  to  be  obliged  to  give  up  the 
part  actually  covered  by  thedeed  under  which  plaintiii' claims, 
and  fall  back  on  the  warrant}'.  In  respK3Ct  to  the  part  which 
the  plaintitf  alleges  ought  to  be  included  because  of  a  mis- 
take, he  may  well  take  the  benefit  of  the  maxim,  "when  the 
equities  are  equal  the  law  must  prevail."  The  bill  must  there- 
fore be  dismissed  as  to  him. 

Brumble,  b}''  his  answer,  makes  an  issue  on  the  allegation 
of  a  mistake,  in  respect  to  the  boundary.  But  as  the  title  has 
passed  out  of  him,  and  vested  in  Britt,  we  are  relieved  from 
the  necessity  of  deciding  this  issue,  because,  in  reference  to 
the  title,  any  correction  or  deed,  which  he  might  be  required 
now  to  make,  would  be  inoperative  and  of  no  eifect,  and  the 
bill  is  not  framed  with  a  view  to  any  ulterior  remedy  for 
breach  of  warranty.  There  is  no  allegation  that  the  deed  un- 
der which  plaintiff  claims  contains  a  warranty,  and  of  course 
no  secondary  relief  in  aid  of  a  resort  to  an  action  at  law  on  a 
warranty,  if  one  had  been  made,  can  be  decreed.  The  bill 
must,  therefore,  be  dismissed,  as  to  this  defendant,  also,  so  far 
as  it  relates  to  the  mistake  alleged  in  respect  to  the  boundary. 

The  mistake  by  reason  of  the  omission  of  words  of  inherit- 
ance being  admitted,, the  plaintiff  is  of  course  entitled  to  a 
decree  against  the  defendant,  Brumble,  to  have  the  deed  cor- 
rected, and  as  he  admits  the  mistake,  anifl  avers  a  willingness 
at  all  times  to  have  corrected  it,  the  plaintiff  would  have 
been  required  to  pay  the  costs  according  to  the  course  of  this 
Court,  but  the  conduct  of  the  defendant,  Brumble,  in  selling 
and  receiving  pay  for  the  same  land  twice,  which  he  certainly 


298  m  THE  SUPKEME  COURT. 

Attorney  General  v.  Osborn. 

did,  as  to  the  part  of  the  land  not  drawn,  in  question,  b}'  the 
alleged  mistake,  and  his  avoiding  the  question  in  reference  to 
the  mistake,  as  to  the  boundary,-  by  the  transfer  of  the  title  to 
his  co-defendant,  takes  from  him  all  right  to  claim  costs. 

As  the  decree  dismisses  the  bill  so  far  as  the  defendant, 
Britt,  is  concerned,  and,  also,  as  to  the  defendant,  Brurable) 
except  as  to  the  mistake  in  respect  to  the  words  of  inheritance 
the  objection  taken,  on  the  hearing,  on  the  ground  of  multi- 
fariousness is  avoided. 

Indeed,  after  the  expense  and  delay  of  preparing  a  case  for 
hearing  has  been  incurred  and  taken  place,  the  court  would 
not.  be  inclined  to  put  the  case  off  on  a  ground  which  does 
not  affect  the  merits  of  the  controversy. 

The  bill  will  be  dismissed  as  to  Britt,  with  costs,  and  will 
be  dismissed  as  to  Bramble,  so  far  as  it  relates  to  the  alleged 
mistake  in  respect  to  boundary,  without  costs  ;  and  there  will 
be  a  decree  without  costs  against  the  defendant,  Brumble,  for 
the  execution  of  a  deed  with  words  proper  to  pass  a  fee  sim- 
ple estate,  so  as  to  correct  the  mistake  in  that  particular. 

•  Pee  Cdkiam,  •  Decree  accordingly. 


THE  ATTORNEY  GENERAL  against  CALEB  OSBORN  et  at 

Where  a  grant  of  3000  acres  of  land  was  made  as  a  bounty  under  the  act  of  1788, 
in  respect  to  a  particular  seat  for  iron- works,  it  was  helcUhat  such  grant  was 
appendant  to  the  seat,  and  exhausted  the  bounty  intended  to  be  given  by 
the  statute;  so  that  one  who  afterwards  became  owner  of  the  seat,  and  re- 
built the  works  there' after  the  former  work?  had  gone  down,  and  were 
abandoned,  had  no  right  to  another  bounty,  in  respect  of  such  seat,  and  that 
a  second  grant  for  bounty  in  such  a  case  was  void. 

Whether  the  requirements  of  the  statute  of  1788,  Rev.  Statutes,  Ch.  75,  in  re- 
gard to  making  the  entry — its  return  to  the  county  court,  the  order  of  sur- 
vey and  the  appointment  and  report  of  a  jury   should  be  strictly  complied 


JUNE  TEEM,  1862.  299 


Attorney  General  v.  Osborn. 


with  as  a  condition  precedent  to  the  issuing  of  a  grant,  or  whether  such 
matters  are  merely  directory,  and  do  not  affect  the  vahdity  of  the  grant. — 
Qiiere. 

Whether  a  grant,  which  includes  withiu-its  boundaries,  a  large  scope  of  coun- 
try, say  an  area  of  ten  miles  by  seven,  but  which  in  its  face,  purports  to  be 
for  3000  acres  of  vacant  land,  the;  excess  being  included  in  older  patents  is 
void. —  Quere. 

Cause  removed  from  the  Court  of  Equity  of  Ashe  County. 

This  is  an  information  filed  in  the  name  of  the  Attorney 
General,  to  vacate  and  set  aside,  a  grant  of  3000  acres  of  land. 

The  grant  was  taken  out  under  the  provisions  of  an  act  of 
the  General  Assemby,  passed  in  the  year  1788,  entitled,  ."An 
Act,  concerning  iron  and  gold  mines."  See  Rev.  Statutes, 
ch.  75.  The  information  alleges  various  grounds  upon  which 
it  is  sought,  to  set  aside  this  grant : 

1st.  That  the  entry  taker,  failed  to  transmit  a  copy  of  the 
entry  to  the  next  term  of  the  county  court,  after  it  was  made. 

2nd.  That  a  subsequent  county  court  ordered  a  warrant  of 
survey,  without  sutiicient  proof  that  the  requisite  amount  of 
iron  had  been  made  at  defeudeut's  iron-works. 

3rd.  That  the  record  made  of  this  transaction,  in  the  county 
court,  is  altogether  irregular,  defective  and  void. 

4th.  A  paper  which  is  relied  on  as  being  the  report  of  the 
jury,  is  in  evidence,  and  it  shows  that  it  was  signed  by  two 
or  three  names,  not  contained  in  the  order  appointing  the  ju- 
ry, and  then  the  said  report  is  ordered  to  be  confirmed.  Va- 
rious other  irregularities,  in  the  entries  of  the  County  Court, 
are  set  forth  in  the  information,  but  in  the  view  taken  by  the 
Court,  they  need  not  be  stated  here. 

5th.  That  the  surveyor  appointed  to  make  the  survey  did 
not  make  any  actual  survey,  but  made  out  a  plat,  arbitrarily, 
withd'ut  doing  so. 

6th.  That  the  whole  proceeding,  embracing  the  plat  of  sur- 
vey and  the  grant,  is  delusive  and  fraudulent ;  that  they  em- 
brace, in  their  exterior  boundaries,  at  least  45,000  acres  of  land, 
and  profess  to  take  only  such  land  as  had  not  been  granted 
by  older  grants,  which  is  set  down  at  3000  acres,  whereas,  the 


300  m  THE  SUPREME  COURT. 


Attorney  General  v.  Osborn. 


information  alleges,  and  the  proof  shows,  that  tliere  was,  in 
the  grant,  at  least,  eight  thousand  acres  of  unappropriated 
land — and  that  much  of  this  was  of  prime  quality  and  fit  for 
cultivation.  The  plaintiff  avers  that  the  survey  is  at  least  ten 
miles  long  and  seven  miles  wide,  and  the  defendants  well 
knew  of  this  large  quantity  of  vacant  land  within  their  grant, 
and  well  knew  the  excellent  quality  of  much  of  the  land,  and 
purposely  devised  this  scheme  to  defraud  the  State  out  of  its 
public  land  and  revenue. 

7th.  The  information  alleges,  and  the  proofs  establish  that 
many  years  ago,  a  man  by  the  name  of  John  Cox,  owned  a 
forge  for  the  manufacture  of  iron  at  the  same  place  where  the 
defendants  have  their  forge,  (Elk  Creek  forge,)  by  virtue  of 
which,  the}'  made  an  entry  and  obtained  a  grant  for  3000 
acres  of  land  (not  included  in  the  defendants  boundaries)  un- 
der the  act  of  178S,  for  the  use  of  tlie  said  iron  works,  and 
that  the  said  grant  is  still  in  force. 

The  defendants,  in  their  answer,  insist  that  Cox's  forge,  at 
Elk  creek,  went  down  many  years  ago,  and  was  entirely  aban- 
doned for  any  purpose  of  making  iron,  and  that  they  have  not 
received  any  of  such  bounty  from  him,  and  are  in  no  wise 
privy  to  him  in  respect  to  such  bounty,  and  that  they  have 
the  same  right  to  be  encouraged  in  their  enterprise  as  if  they 
had  located  their  iron  works  at  a  different  spot  from  that  on 
which  they  are  established.  They  deny  all  combination  and 
fraud. 

The  cause  was  set  down  for  hearing  on  the  information,  an- 
swer, proofs  and  exhibits,  and  sent  to  this  Court. 

Elaborate  surveys  were  made,  by  order  of  this  Court,  of  all 
the  country  embraced  within  the  lines  of  the  grant,  showing 
the  various  tracts  heretofore  granted,  and  the  amount  of  va- 
cant land,  which  were  used  on  the  hearing. 

JBadger,  JVeal,  Crurrvpler  and  W.  P.  Caldwell^  for  plaintiff. 
B.  F.  Moore,  Boyden,  Mitchell  and  Foiole,  for  defendants. 

Pearson,  C.  J.     It  is  not  necessary,  for  the  purpose  of  dis- 


JUNE  TERM,  1862.  301 

Attorney  General  v.  Osborn. 

posing  of  this  case,  to  decide  whether,  in  reference  to  grants 
of  this  description,  all  of  the  requirements  of  the  statute,  in 
regard  to  the  manner  of  making  the  entry — its  return  to  the 
county  court — the  order  for  a  survey,  and  the  appointment 
and  report  of  a  jur3',  should  be  strictly  complied  with  as  a 
condition  precedent  on  which  the  validity  of  the  grant  is  made 
to  depend,  according  to  the  law,  as  settled  in  reference  to  the 
sale  of  land  for  taxes,  or  whether  such  matters  are  only  direo- 
io7'y,  so  that  a  grant  issued  by  the  proper  authorities  for  land, 
which  is  the  subject  of  grant,  is  to  be  held  valid,  and  cannot 
be  declared  void,  and  of  no  effect,  notwithstanding  the  require- 
ments of  the  statutes  have  not  been  observed  according  to  the 
law,  as  settled  in  respect  to  grants  issued  under  the  acts  in 
reference  to  ordinary  entries  and  grants  of  vacant  land. 

2.  Nor  is  it  necessary  to  decide  whether  a  grant,  which  in- 
cludes within  its  boundaries  a  large  scope  of  country,  say  ten 
miles  by  seven  miles  square,  45,000  acres,  but  which,  on  its 
face  pui'ports  to  be  a  giant  of  3000  acres  of  vacant  land,  the 
excess,  included  in  the  boundaries,  being  covered  by  older 
patents,  is  in  law  void,  for  the  want  of  power  in  the  Governor 
to  issue  such  a  grant.  We  will  take  occasion  to  i-emark,  how- 
ever, without  reference  to  the  question  of  power,  that  its  ex- 
ercise leaves  open  a  wide  door  for  the  admission  of  fraud  and, 
certainly,  calls  for  extreme  vigilance  on  the  part  of  the  public 
authorities. 

3.  Nor  is  it  necessary  to  decide  whether  the  defendants 
were  guilty  of  actual  fraud  in  obtaining  a  grant  for  some 
5000  acres  more  than  they  claimed  to  be  entitled  to.  It  may 
be,  under  the  circumstances,  that  owing  to  the  large  scope  of 
country  covered  by  the  survey,  and  the  infinite  number  of 
tracts  of  land  held  by  older  grants,  embraced  wholly,  or  in 
part,  by  the  lines  of  tiie  survey,  they  did  not  know,  positively, 
the  fact  of  this  large  excess,  and  were  intent  only  on  includ- 
ing, at  the  least,  enough  vacant  land  to  fill  their  complement 
of  3000  acres,  iind  it  is  certain  the  case  does  not  fall  under 
the  decision.  Attorney  General  v.  Carver^  12  Ire.  230 ;  for 
there,  every  thing  on  tlie  face  of  the  suuvey  and  plat  was 

4 


303  IJ^  THE  SUPREME  COURT. 

Attorney  General  v.  Osborn. 

right,  and  there  was  no  ground  to  admit  of  any  doubt  or  ques- 
tion of  its  correctness,  so  far  as  the  papers  showed,  and  the 
fraud  was  made  palpable  b_y  the  fact  afterwards  disclosed^ 
that  the  natural  boundaries  called  for,  extended  tlie  lines  two 
miles  instead  of  200  poles,  on  the  settled  rule,  that  course  and 
distance  are  controlled  b}'  a  call  for  natural  objects  as  the 
boundary.  This  fact,  of  itself,  convicted  both  the  surveyor  and 
the  grantee  of  a  fraud,  and  there  could  be  no  mistake  about 
it.  But  here,  the  surve^^  and  plat  show  that  a  large  extent  of 
country  was  included;  tlie  surveyor  says  33,000  acres  of  older 
patented  land  is  embraced,  which  being  deducted,  leaves  8000 
acres  the  subject  of  the  gi'ant ;  so  it, does  not  appear,  palpably, 
that  the  defendants  were  awai'e  of  the  lai-ge  excess  of  vacant 
land,  and  we  should  require  strong  proof  to  lead  us  to  the  con- 
clusion that  either  the  count}-  surveyor,  Calloway^  or  his  dep- 
uty, McMillan^  knew  of  the  fraud,  if  any  such  existed  on  the 
part  of  the  defendants,  and  prostituted  themselves  in  the  dis- 
charge of  the  duties  of  their  othce,  in  order  to  aid  tlie  defend*- 
ants  in  defrauding  the  State  out  of  an  indefinite  number  of 
acres  of  land  not  iit  for  cultivation,  and  wliich  was  subject  to 
entry  at  five  cents  per  acre  ;  not  exceeding,  at  any  estimate, 
the  amount  of  $300  as  the  sum,  out  of  which,  in  this  view  of 
the  case,  the  State  has  been  defrauded  by  the  corruption,  not 
only  of  the  defendants,  but  of  the  county  surveyor  and  his 
deputy — both  sworn  olficers. 

4,  For  we  put  our  decision  on  the  ground,  that  the  grant 
was  issued  against  law  ;  that  is,  without  the  authority  of  the 
law,  and  in  a  case  tliat  did  not  come  within  tlie  operation  of 
the  statute  of  1788,  "  to  encourage  the  building  of  iron-works." 
The  statute  recites  "  Whereas,  it  appears  to  the  General  As- 
sembly that  several  ]:)laceii,  in  tliis  State,  are  advantageously 
situated  for  the  building  of  iron-works,"  "Be  it  enacted  tliat 
three  thousand  acres  of  vacant  land,  not  fit  for  cultivation, 
tnost  convenient  to  the  different  seats,  is  hereby  granted  for 
every  set  of  iron-works,  as  a  bounty  from  this  State,  to  any 
person  or  persons,  who  will  build  and  carry  on  the  same,  to 
be  under  the  following  rules  and  regulations." 


JUNE  TERM,  1862,  303 


Attorney  General  v.  Osborn. 


It  is  alleged  in  the  information,  and  proved  bj  the  evidence, 
that  o)ie  Cox  had,  many  years  ago,  bnilt  and  carried  on  iron- 
works at  this  "  identical  seat,"  and  had,  by  reason  thereof, 
applied  for  and  obtained  a  bounty  of  3000  acres  of  vacant  land. 
The  question  is  :  was  this  bounty  land  of  3000  acres  append- 
ant to  the  seat  of  the  iron-ivorhs^  or  was  the  intention  to  give 
a  bount}'  of  3000  acres  of  land  to  every  person,  who  would, 
upon  that  seat,  from  time  to  time,  build  and  carry  on  iron- 
works? Upon  the  former  construction,  M'hen  the  iron-works 
should  be  built  and  carried  on  at  the  particular  seat,  the  boun- 
ty of  three  thousand  acres  of  land,  most  convenient  to  the 
seat,  was  to  be  given,  and  although  the  bounty  land  was  not 
annexed  to  the  srat,  so  titat  the  seat  could  not  be  conveyed 
without  passing  the  bounty  land,  or  the  bonnty  laud  could  not 
be  conveyed,  wholh'  or  in  parcels,  without  also  conveying  the 
seat  of  the  ii-on-works,  still  the  bounty  was  exhausted,  and 
could  not  be  claimed  in  behalf  of  any  other,  person  who 
should  purchase  or  otherwise  acquire  the  ownership  of  the 
seat,  after  the  bounty  land  had  been  severed  from  it.  Upon 
the  latter  construction,  every  person  who  by  purchase,  de- 
scent, or  otherwise,  might  at  any  time,  acquire  title  to  the 
seat,  would  be  entitled  to  a  bounty'  of  3000  acres  of  land  ;  so 
that  all  that  was  necessary  to  do,  in  order  to  acquire  a  title  to 
another  bounty  of  3000  acres  of  land  was,  for  the  man,  who 
had  obtained  the  bounty,  to  let  the  works  go  down,  and  sell 
off  the  3000  acres  of  land,  which  had  been  received  as  a  boun- 
ty, and  then  rebuild  and  carry  on  the  works  long  enough  to 
make  5000  lbs.  of  iron,  and  thereupon  entitle  himself  to  an- 
other bounty  of  3000  acres  of  vacant  land,  not  fit  for  cultiva- 
tion, "  most  convenient  to  the  scat;"  then  let  him  sell  to  a 
stranger  the  seat  for  the  iron-woi-ks  after  he  has  ceased  carr}'- 
ing  on  the  works,  and  let  the  purchaser  of  the  seat  rebuild  and 
make  5000  lbs.  of  iron,  and  he  gets  another  bounty  of  3000 
acres  of  land,  most  corircnient  to  the  seat ^  and  so  ad  in-finitam, 
tin  til  all  of  the  vacant  land  in  the  county  is  absorbed  by  these 
euccessivc  bounty  grants ! 

This  latter  oonetruction  cannot  be  adopted,  and  wo  hold, 


304  IN  THE  SUPREME  COURT. 

Chambera  ».  Reid. 

according  to  the  true  constrnction  of  the  statute,  the  grant  of 
the  bounty  of  3000  acres  of  land  to  Cox,  in  respect  and  as  ap- 
pendant to  this  particular  seat,  on  which  he  had  built  and 
carried  on  iron-works,  exhausted  the  bounty  intended  to  be 
given  by  the  statute,  and  no  one,  who  afterwards  became  the 
owner  of  the  seat,  had  any  right  to  claim  another  bounty  of 
another  3000  acres  of  land.  It  follows  that  the  grant  in  ques- 
tion was  issued  against  law,  and  is,  therefore,  void. 

Pek  Curiam,  Decree  accordingly. 


JOHN  CHAMBERS,  d  al,  against  WILLIAM  REID  and  othei-s. 

Where  a  bequest  was  made,  to  the  children  of  a  brother  and  sister  of  the 
testator,  to  which  is  added,  "that  is.  on  the  supposition,  that  my  brother  is 
dead ;  but  if  he  is  alive  at  the  time  of  ray  death,  then,  he  is  to  receive  one- 
half  of  ray  estate,"  it  was /jeW,  that  no  question  a?  to  whether  the  estate 
was  to  be  divided,  according  to  heads  or  stocks  could  arise,  for  that  the 
brother  took  one-half  of  the  estate,  and  his  children  nothing. 

Cause  removed  frona  the  Court  of  Equity  of  Mecklenburg 
county. 

David  Chambers  died,  in  the  year  1858,  having  made  and 
published  his  last  will  and  testament,  in  which  after  several 
dispositions  of  his  property  in  various  clauses,  be  bequeaths  as 
follows:  Item  7th.  It  is  my  will,  that,  after  all  the  foregoing 
items  of  my  will  are  fully  carried  out,  that  the  balance  of  ray 
estate  be  disposed  of,  as  follows:  to  be  equally  divided  be- 
twetn  the  children  of  my  brother  John  Chambers,  and  the 
chihii-en  of  my  deceased  sister,  JSTancy  Woodward,  each  to 
share  equally  in  all  respects;  that  is  on  the  supposition,  that 
my  1)1  other  be  dead,  but  if  he  is  alive  at  the  time  of  my  death, 
then  he  is  to  receive  one-half  of  my  estate,  himself." 

It   Mined  out  that,  at  the  testator's  death,  his  brother,  John 


''    JUNE  TERM,  18^2.  v  305 


Chambers  v.  Ried. 


Chamberfi,  was  living,  but  in  a  distant  State,  and  had  not  been 
heard  from  by  iiis  brother  for  man}'  years.  He,  John,  had  at 
tlie  death  of  the  testator,  nine  children,  who  are  all  parties 
plaintiffs,  and  tliej' claim  to  share  equally,  each  with  the  chil- 
dren of  Mrs.  Woodward,  after  deducting  one-half  of  the  estate 
for  their  f&tiier,  John  Chambers. 

The  children  of  Mrs.  Woodward,  of  whom  there  are  five, 
and  the  executor  of  the  will,  are  made  parties  defendants,  and 
insist  that  these  children  are  entitled  to  have  oue-lialf  of  this 
residuary  interest  divided  among  them,  conceding  tliat  John 
Chambers  is  entitled  to  the  other  half.  The  cause  was  set 
down  for  hearing  on  bill,  answer  and  exhibits,  and  sent  to  this 
court, 

Fowle  for  plaintiftl 
Wilson  and  Boydai  for  defeiidant. 

Battlk,  J.  We  have  no  hesitation  in  saying  that  the  con- 
struction of  the  will  in  question,  contended  for  by  the  defend- 
ants is  correct.  Had  the  latter  part  of  the  clause,  which  re- 
lates to  the  supposition  of  the  death  of  the  testator's  brother, 
John,  been  omitted,  then  iiis  nine  children  would  have  taken 
equall3'j?<?r  capita  with  the  five  children  of  the  testator's  de- 
ceased sister,  according  to  the  well  known  rule  applicable  to 
such  bequeaths.  See  Brijaut  v.  Scott^  1  Dev.  and  Bat.  Eq. 
155.  llarrdl  v.  Davenport^  5  Jones'  Eq,  4.  Roper  v.  Ropei\ 
Ibid.  16.  But  the  reference  by  the  testator  to  his  brother, 
John,  and  saj'ing  that  if  he  were  alive  he  should  receive  one- 
half  of  the  estate  himself,  is,  we  think,  a  suflicient  indication 
of  intention  that  the  divisions  should  he  per  stirpes,  so  that  if 
John  had  been  dead,  his  children  would  have  taken  only  one- 
half  of  the  estate,  to  be  equally  divided  between  them,  leav- 
ing the  other  half,  to  be  equally  divided  between  the  children 
of  the  deceased  sister.  See  Bivens  v.  Pkifer^  and  the  cases 
therein  referred  to,  2  Jones'  436.  However  that  may  be,  we 
are  satisfied  that  as  John  was  alive,  he  took  all  that  was  in- 
tended idT  him  or  Lis  family,  wLich  cxcludoe  \m,  children,  and 


S06  m  THE  SUPREME  COURT. 

In  the  mattCT  of  Yates. 

leaves  one-half  of  the  legacy  for  the  children  of  the  testator's 
deceased  sister,  Mary  Woodward.  A  decree  may  be  drawn 
in  accordance  with  this  opinion. 

Pee  Curiam^  Decree  accordingly. 


In  the  vicdter  of  YATES. 

Whey®  a  Court  of  Equity  is-  resorted  to,  for  the  sale  of  land,  after  the  sale  is 
ordered  to  be  confirmed  (by  which  the  bid  becomes  accejyiecl,)  if  the  ma^te? 
informs  the  court  that  the  bidder  refuses  to  comply  with  the  terms  of  the 
sale,  no  order  prejudicing  the  rights  of  the  bidder  can  be  made,  until  he  is 
made  a  party  to  the  proceedings  by  the  fiervice  of  a  rule  upon  him  to  show 
cause. 

This  is  an  appeal  from  an  interlocutory  order  made  by  his 
Honor,  Judge  Osboene,  at  the  Fall  Term,  1861,  of  the  Court 
of -Equity,  of  Martin  county. 

The  Supi-eme  Court  having  reversed  the  order  directing  the 
land  in  question,,  to  be  re-sold,  and  that  Coffield  and  Burnhill 
pay  the  ditference  between  the  first  and  a  second  sale,  the 
cause  came  on  for  further  consideration  of  the  court,  and  the 
following  order  was  made  :  "Upon  reading  the  report  of  the 
master,  it  appearing  thereby,  that  the  tract  of  land  described 
in  the  petition,  as  adjoining  the  land  of  C.  Moore  and  others, 
bounded  by  the  Roanoke  river  on  the  north,  C.  Moore  and 
otheri>on  the  south,  Simuions,  Grady,  &  Co.,  on  the  west,  had 
been  sold  by  the  said  nnister,  and  bid  off  by  one  Archihald  H. 
Coffield  for  liiraself  and  Turner  E.  Barnhill,  as  the  last  and 
highest  bidder,  at  the  price  of  $6,000,  and  the  said  Archibald 
H.  Coffield  had  been  accepted  by  the  master,  as  the  purchas- 
er thereof  at  the  said  sum,  which  sura,  by  the  terms  of  the 
sale,  was  to  be  paid  in  sums,  as  follows :  $3,000  on  the  1st  day 
of  January  1862,  with  interest  from  the  1st  day  of  January 
1861,  and  $3,000  oq  the  1st  day  of  January  1863^  with   intejr- 


JUNE  TERM,  1862.  307 


In  the  matter  of  Yates. 


est  from  the  1st  day  of  January  1861,  and  each  sum  was  to  be 

secured  by  the  bond  of  tlie  purchaser,  with  good  security. 

Whereupon,  also,  the  decretal  order  for  the  sale  of  the  premi- 
ses being  read,  and  now  the  matter  being  again  moved  by  the 
counsel  for  the  petitioner,  Coffield  and  Barnhill   opposed    the 
motion,  and    they   offered   to  file  affidavits   establishing  the 
fact,  that,  before  the  sale,  no  information  was  given    to  them, 
or  either  of  them,  as  to  tiie  true  state  of  the  title  of  the  peti- 
tioner to  the  land  aforesaid  ;  and  they,  also,  opposed    the  mo- 
tion, on  the  ground  that  the  purchasers  Ijad  no  actual  notice  of 
this  motion  ;  the  court  doth  confirm  the  sale  to  the  said  Arch- 
ibald li.  Coffield,  and  thereupon,  on  the  prayer  of  the  counsel 
for  the  petitioner,  tlie  court  doth  order  that  notice  of  this  pro- 
ceeding be  served  on  Coffield  and  Barnhill  by  the  Sheriff  of 
this  county,  requiring  them  to  appear-  at  the  next  term  of  this 
court,  and  complete  their  purchase,  as  aforesaid,  according  to 
the  terms  of  the  said  sale,  or  then  show  cause  to  the  contrary. 
And  in  the  event  that  they  do  not,  or  that  said    Coffield    does 
not  complete  the  said  purchase,  or  siiow  to  the  court,  cause  to 
the  contrary,  the  said  master  forthwith  re-sell  the  said  premi. 
ses,  and  that  all  the  costs,  charges  and  incidental  expenses,  at- 
tending the  said  sale  and  occasioned  by  the  default  of  the  said 
Coffield  and  Barnhill,  together  with  any  loss  or   deficiency  in 
the  price  and  interest  arising  by  a  second  sale,  be  ascertained 
by  the  master,  and  tlie  same  be    paid  into    the  office  of  this 
court,  by  the  said  Coffield  and  Ba.mhill,  for  the  benefit  of  the 
petitioners." 

From  this  order  Coffield  and  Barnhill  prayed  an  appeal  to 
the  Supreme  Court,  which  was  allowed. 

B.  F.  Moore  for  the  petitioners. 

Winston,  Jr.,  for  Coffield  and  Barnhill. 

* 

Pearson,  C.  J.  When  the  case  was  here  before,  (ante  212,) 
we  pointed  out  the  "  orderly  mode  of  proceeding,"  where  the 
agency  of  a  court  of  equity  is  resorted  to  in  order  to  sell  land. 

On  the  coming  in  of  the  master's  report,  if  the  court  is  sat- 


308  IN  THE  SUPREME  COURT. 

In  the  matter  of  Yates. 

isfied  that  the  interest  of  the  petitioner,  for  whoni  the  court  is 
acting,  has  been  attended  to,  the  first  order  is  to  confirm  the 
sale.  The  eftect  of  which,  is,  to  accept  the  bid  of  the  purcha- 
ser, which  is  necessary,  in  order  to  "bind  the  bargain,"  so  far 
as  the  petitioner  is  concerned.  The  purchaser  is  not  a  party 
to  this  order.  He  is  not,  then,  before  the  court,  and,  of  course 
his  rights  are  not,  in  any  way,  prejudiced  by  the  order  of  con- 
firmation. 

Wiiereupon  the  court  being  informed  by  the  master,  that 
the  purchaser  declines  to  comply  with  the  terms  of  the  sale,  a 
rule  is  taken  on  him  to  show  cause ;  which  may  be  returned 
instanter  if  the  purchaser  is  present.  The  object  of  the  rule 
is  to  bring  the  purchaser  before  the  court,  and  upon  its  return, 
Ijotli  parties  are  then  heard,  and  the  court  adopts  one  of  the 
three  orders  set  out  in  our  former  opinion. 

His  Plonor  erred  in  making  any  further  order,  until  the  re- 
turn of  the  rule  ;  and,  indeed  the  order  which  is  made  assumes 
that  the  purchaser  will  not  be  able  to  show  any  good  cause, 
and  proceeds  to  direct  what  shall  be  done  in  that  event. 

We  presume  his  Honor  was  misled  by  the  orders  made  in 
the  case  of  Harding  v.  Yarhrough,  which  the  reporter  ap- 
pends as  a  note  to  this  case.  In  that  case,  the  purchaser  made 
no  difficult}',  because  of  a  defect  in  the  title,  or  any  irregula- 
rity in  the  mode  of  conducting. the  sale,  or  otherwise.  The 
sole  difiiculty  grew  out  of  an  inability  to  give  the  security. — 
So  in  Harding  v.  Harding^  18,  Eng.  Ch.  Kep.  514,  from 
which  the  order  in  Harding  v.  Yarhrougli  was  taken,  there 
had  been  a  reference,  as  to  the  title,  (which  is  always  done 
in  England,  on  account  of  the  very  complicated  condition  of 
titles  in  that  country,)  and  the  only  object  was  to  compel  the 
purchaser  to  comply  with  the  tei-ms  of  sale.  In  our  case  the 
purchaser  had  a  right  to  be  heard  in  reference  to  his  objec- 
tions to  the  manner  of  making  the  sale,  or  to  the  title,  or  any 
other  ground  of  ol)jection,  and  the  object  of  the  ''ule  was  to 
give  him  a  day  in  court,  and  an  opportunity  of  being  heard. 
So  the  entry  in  Harding  v.    Yarhrough,  had  no  application. 

This  opinion  will  be  certified  that  further  proceedings  may 


JUNE  TERM,  1862.  309 


Allen  V.  Pearce. 


be  taken  in  the  court  below;  the  orders  in  that  conrt  being 
reversed,  except  so  much  as  confirms  the  sale,  and  directs  a 
rule  on  the  purchaser  to  show  cause  at  the  next  term. 

Pek  Curiam,  Order  below  reversed. 


JAMES  P.  ALLEN  agai7ist  JOHN  PEARCE  and  others. 

Where  the  obligee,  in  a  bond  far  title,  paid  a  material  portion  of  the  pur- 
chase-money down,  and  gave  a  note  for  the  residue,  and  entered  into  pos- 
session and  continued  it  up  to  the  time  of  a  suit  in  ejectment  by  the  obli- 
gor, it  was  held  to  be  a  strong  case  for  the  court  of  equity  to  interfere  by 
injunction,  to  prevent  the  obligee  from  being  turned  out,  under  the  execu- 
tion, in  the  suit  at  law. 

Where,  to  a  bill  for  an  injunction,  the  defendant  answers  lightly  and  evasive- 
ly to  material  allegations,  the  injunction  will  not  be  dissolved. 

Where  new  matter  is  introduced  in  an  answer,  in  avoidance  of  the  plaintiir's 
equity,  it  will  not  be  considered  on  a  motion  to  dissolve. 

Appeal  from  an  interlocutor}^  order  of  the  Court  of  P]quity 
of  Wake  county,  ordering  the  dissolution  of  an  injunction, 
Bailey,  J.,  presiding. 

The  defendant,  Jolm  Pearce,  on  the  15th  of  June,  1857, 
entered  into  a  penal  bond  payable  to  the  plaintiff,  James  P. 
Allen,  which  was  conditioned  that  ''if  the  said  J.  P.  Allen 
shall  fully  comply  with  the  contract,  in  the  above  premises, 
and  pay  to  the  said  John  Pearce  the  remainder  of  the  pur- 
chase-money, with  interest  and  necessary  costs  of  these  trans- 
actions, which  is  $175  10,  seventy  dollars  of  which  is  this 
day  paid  in  cash,  and  the  receipt  whereof  is  hereby  acknowl- 
edged, and  tiie  remainder  is  $107  10,  with  interest  from  the 
7th,  then  the  said  John  Pearce  is  to  make  him  a  good  and  law- 
ful title  to  the  above  lands."  The  plaintiff  immediately  went 
into  possession  of  the  premises,and  has  occupied  them  ever  since. 

Before  this  suit  was   brought,  Pearce   falling   into   pecu- 


310  IN  THE  SUPREME  COURT. 

Allen  V.  Pearce. 

niar}'  difficulties,  conveyed  the  land  in  question  to  one  Geo. 
"W.  Thompson,  as  trustee,  for  the  payment  of  his  debts,  and 
on  29th  day  of  September,  1861,  he  sold  the  same  at  public  auc- 
tion to  the  defendant,  Marcellus  Pearce,  and  made  him  a  deed 
in  fee  simple  for  the  same.  The  plaintifl'  alleges  tiiat  he  at- 
tended at  this  sale  by  the  trustee,  and  made  objection  there- 
to. Also  tl)at  the  defendant,  Marcellus,  had  full  knowledge 
of  the  equitable  claim  of  the  plaintiff,  and  so  had  the  said  G. 
W.  Thompson,  when  the  deed  of  trust  was  made  to  liim. 

The  plaintiff  alleges  that  before  this  sale,  and  before  this 
suit  was  brought,  but  after  the  money  fell  due,  he  tendered 
the  purchase-money  in  full,  and  demanded  a  deed  in  fee  sim- 
ple from  the  said  Pearce,  and  the  other  defendants  claiming 
under  liim,  whicli  was  refused. 

The  plaintiff  further  shows,  that  the  defendant,  Marcellus 
Pearce,  sued  him  in  ejectment  and  obtained  a  judgment  by 
default,  and  is  threatening  to  turn  him  out  of  the  posses- 
sion. The  prayer  is  for  an  injunction  (wliich  issued)  and  for 
an  account  for  the  ascertainment  of  the  balance  of  the  pur- 
chase-money, and  for  a  conveyance  to  him  of  the  legal  title  on 
the  payment  tliereof,  also  for  general  relief. 

The  defendants  admit  the  bond  to  make  title  to  plaintiff; 
they  also  admit  that  the  payments,  alleged,  have  been  made ; 
the  defendant,  Pearce,  admits  also  the  tender,  but  denies  that 
it  was  in  full,  or  that  it  was  made  before  the  execution  of  the 
deed  of  trust.  The  manner  of  this  denial  is  noticed  in  the 
opinion  of  this  Court.  The  defendant,  Marcellus  Pearce,  de- 
nies that  the  plaintiff  forbade  the  sale  by  the  trustee,  but  al- 
leges that  he  assented  to  the'  sale  and  urged  the  running  off 
of  the  land. 

On  the  coming  in  of  the  answer,  thfe  defendants'  counsel 
moved  for  a  dissolution  of  the  injunction,  which,  on  argument, 
his  Honor  granted,  and  it  was  ordered  to  be  dissolved ;  from 
which  order,  the  plaintiff,  by  leave  of  the  Court,  appealed. 

Fowle,  for  the  plaintiff. 

A.  M.  Lewis,  for  the  defendants. 

Battle,  J.    The  right  of  the  plaintiff  to  call  upon  the  de- 


JUNE  TEKM,  1862.  311 


Allen  V.  Pearce. 


fendant,  John  Pearce,  for  a  specific  execution  of  his  contract, 
for  the  sale  of  the  land  in  controversy,  is  clear,  beyond  all 
question.  The  contract  foi"  tiie  sale  is  in  writing,  a  part  of 
the  purchase-money  was  paid  in  cash,  and  a  note  given  for 
the  residue,  and  the  plaintiff,  thei'cupon,  took,  and  still  contin- 
ues in,  possession.  Tiie  phiintiff  alleges  that  before  the  exe- 
cution of  the  deed,  in  trust,  by  the  said  John  Pearce  to  the 
defendant,  Thompson,  he  tendered  to  Pearce  the  balance  of 
the  purchase-money,  and  demanded  a  conveyance,  which  was 
refused.  And  this  defendant  admitting  the  written  contract 
of  sale,  and  admitting  also  the  tender,  denies  that  it  was  in 
full,  or  was  made  before  the  execution  of  the  deed  in  trust. 
The  denial,  however,  is  made  so  slightly  and  evasively  as  to 
have  very  little  weig-ht.  It  is  true,  that  the  tender  was  made 
after  the  note  became  due,  but  it  is  idle  to  say,  as  the  defend- 
ant, John  Pearce,  does,  that  the  contract  was  abandoned,  and 
the  plaintiff's  equity  I'clinquished.  Tliere  cannot  be  the 
slightest  pretense  that  this  case  is  an  exception  to  the  maxim, 
that  in  equit}^  "  time  is  not  of  the  essence  of  the  contract;" 
see  Falls  v.  Carpenter^  1  Dev.  and  Bat.  Eq.  237,  and  the  note 
to  the  2nd  edition. 

The  defendant,  John  Pearce,  had  then,  no  right,  upon  his 
answer,  to  move  for  a  dissolution  of  the  injunction,  and  the  oth- 
er defendants  liave  no  greater  i-ights  than  he  has,  as  they  do  not 
deny  that  they  purchased  with  notice  of  the  plaintiff^'s  claim. 

The  allegation,  faintly  made  by  the  defendant,  Marcellus 
Pearce,  that  the  i)laintiff'  assented  to  the  sale  b}^  the  defend- 
ant, Thom})son,  as  trustee,  is  an  averment  of  new  matter 
which  may  possibly  avail  him,  if  he  can  prove  it  on  the  hear- 
ing, but  it  cannot  be  considered',  on  this  notice  to  dissolve  the 
injunction,  it  being  an  established  rule  that  the  injunction 
must  be  continued,  unless  the  equity,  set  forth  in  the  plain- 
tiff''s  bill,  be  denied  in  the  answer;  Lindsay  v.  lUheridrje ^ 
1  Dev,  and  Bat.  Eq.  36.  The  order  dissolving  the  injunction, 
must  be  reversed,  and  a  certificate,  to  that  effect,  be  sent  to 
the  Court  below. 

Per  Curiam,  Decree  accordingly. 


312  IN  THE  SUPREME  COURT. 


Bevis  V.  Landis. 


S.  D.  BEVIS,  Executor,  against  AUGUSTIN  LANDIS. 

A  sherifif  has  a  right  to  sell  an}'  property  of  the  debtor,  that  is  subject  to  the 
lien  of  his  execution,  and  the  fact  that  one  has  bought  part  of  such  property 
at  private  sale,  bona  fide,  and  paid  the  full  value,  and  that  enough  of  other 
property  remained  to  satisfy  the  execution,  and  that  the  shenlF  and  pur- 
chaser had  knowledge  of  this  purchase,  but  were  benefitted  in  the  sale  of 
this  particular  property,  and  made  it  from  such  motive,  could  raise  no  equi- 
ty against  the  sheriff  or  purchaser. 

Cause  removed  tVom  the  Court  of  Equit}'  of  Granville. 

The  slave  in  question,  a  man  named  Anderson,  was  sold  by 
tlie  sheriff,  Joseph  H.  Gooch,  at  public  auction  to  the  defend- 
ant, Landis,  by  virtue  of  an  execution  against  one  D.  A.  Pas- 
chall.  The  intestate  of  the  plaintiff,  had  purchased  Anderson 
at  private  sale,  on  the  12tli  of  September  1S57,  and  took  a  bill 
of  sale  for  him  from  Paschall.  The  consideration  expressed 
in  this  bill  of  sale  is  $1,000.  The  sheriff'^s  sale  took  place  af- 
ter the  date  of  the  bill  of  sale,  but  under  an  execution  having 
a  lien  prior  to  the  date  thereof.  At  the  sale,  the  agent  of  the 
plaintiff's  testator  attended,  and  exhibited  his  title,  and  forbade 
thesale,  pointing  out  to  the  sheriff",  divers  otherslavesand  other 
property  in  the  hands  of  Paschall,  out  of  which  the  execution 
could  be  satisfied  ;  the  sheriff,  nevertheless,  proceeded  to  q,vj 
the  sale,  and  the  defendant,  Landis,  having  become  the  last 
and  highest  bidder,  the  slave  was  cried  oft'  to  him,  and  deliv- 
ered to  him  by  the  sheriff  with  his  bill  of  sale. 

The  bill  charges  that  both,  the  sheriff'  and  Landis,  the  pur- 
chaser, knew  of  Morris'  purchase,  but  were  involved  on  ac- 
count of  Paschall,  and  the  sale  of  this  slave,  Anderson,  was 
made  to  relieve  them  as  to  these  liabilities.  The  bi*ll  was  filed 
by  Morris,  in  his  lifetime,  and  his  death  being  suggested,  his 
executor,  the  present  plaintiff',  was  made  a  part}-.  The  prayer 
is,  that  Landis  shall  convey  the  legal  title  of  Anderson,  to  the 
plaintiff",  (then  Morris,)  and  deliver  possession,  and  account  for 
the  slave's  services  and  profits,  since  he  purchased  him,  and 
in  default  thereof,  that  Gooch  may  account,  &c.  The  answer 
of  the  defendant  alleges  various  matters  in  the  way  of  expla- 


j;UNE  TERM,  1862.  313 


Bevis  V.  Landia. 


nation,  which  are  not  deemed  nececsary  to  be  set  forth — it 
states,  however,  that  executions  of  a  test  junior  to  this  sale  to 
Morris,  came  into  the  hands  of  the  sherifi",  and  without  selling 
Anderson  under  th«  former  lien,  there  was  not  enough  prop- 
eaty  to  satisfy  them  all. 

The  cause  was  set  for  liearing  on  the  bill,  answer,  proofs 
and  exhibits,  and  sent  to  this  court. 

B.  F.  Moore  for  the  plaintiff. 

No  counsel  appeared  for  the  defendant  in  this  court. 

Peakson,  C.  J.  The  bill  is  filed  on  the  assumption  that 
one,  who  purchases,  at  a  fair  price,  a  slave  or  other  articles  of 
a  debtor,  whose  property  is  subject  to  the  lien  of  an  execu- 
tion, but  who  has  other  slaves  and  property,  besides  the  one 
sold,  sutficient  to  satisfy  the  execution,  is  entitled  to  the  pro- 
tection of  a  court  of  equity,  so  that  provided  he  gives  notice 
to  the  sheriff  of  the  fact  of  his  being  a  purchaser  of  one  of  the 
slaves,  and  forbids  the  sheriff  from  selling  that  particular 
slave,  and  requires  him  to  make  the  amount  of  the  execution 
by  selling  some  one  of  the  other  slaves,  and  the  sheriff,  never- 
theless, proceeds  to  sell  the  particular  slave,  equity  will,  in 
favor  of  the  purchaser  at  private  sale,  convert  the  purchaser, 
at  the  execution  sale,  into  a  trustee,  if  he  is  fixed  with  notice 
of  the  facts,  and  require  him  to  convey  the  slave  to  the  pur- 
chaser at  private  sale. 

The  bill  is  of  "  the  first  impression."  No  case  or  dictum 
was  cited  to  support  it,  and  we  arc  not  able  to  see  any  princi- 
ple upon  which  such  an  equity  can  be  based. 

It  is  true,  the  title  of  a  debtor  is  not  divested  by  the  execu- 
tion. If  he  sells,  the  purchaser  acquires  the  property  subject 
to  the  lien  of  the  execution.  If  that  be  removed  his  title  is 
good,  but  if  it  be  not  removed,  his  title  will  be  divested  by  a 
sale,  under  it,  and  neither  a  court  of  law  or  .equity  can  con- 
trol the  power  of  the  sheriff  to  make  sale  under  the  exe- 
cution. Indeed,  such  an  interference  would  give  rise  to  mucli 
inconvenience,  and  greatly  embarrass  officers  in  the  discharge 


SU  IN  THE  SUPREME  COURT. 

Bevis  V.  Landis. 

of  their  duties.  One  man  will  sa}-,  "I  have  bought  this  negro  and 
forbid  you  from  selling  him,  because  the  other  property  is 
sufficient,  out  of  which  you  can  make  your  money."  A  sec- 
ond says,  "  I  have  bought  this  negro  an«t  you  must  not  sell 
him."  So  a  third  and  a  fourth  ;  and  the  sheriff  may  proper- 
ly reply,  "  the  law  has  not  made  it  my  duty  to  take  care  of 
your  rights,  or  to  settle  priorities  between  you  ;  I  have  pow- 
er to  sell  any  one,  or  all  of  these  negroes,  in  order  to  satisfy 
the  execution  ;  it  was  your  follj'-  to  buy  property  subject  to  my 
lien,  without  taking  care  to  provide  for  the  payment  of  the 
executions,"  This  position  of  the  sheriff  is  unanswerable. 
The  courts  could  not  interfere  with  the  action  of  the  sheriff 
under  this  general  power  given  by  the  execution,  even  in  be- 
half of  a  suret}'',  whose  property  was  sold,  or  wasabout  to  be 
sold,  to  pay  the  debt  in  the  fii'st  instance,  although  it  was 
known  to  the  sheriff  that  the  principal  had  property,  out  of 
which  the  debt  could  be  made ;  see  Eason  v.  Petway^  1  Dev. 
and  Bat.  44.  It  was  necessary  to  pass  an  express  statute  for 
the  protection  of  the  surety  against  the  capricious  and  wan- 
ton exercise  of  this  power  by  sheriff's  and  other  officers ;  Rev. 
Code,  ch.  31,  sec.  124.  It  has  not  been  deemed  expedient  by  the 
Legislature  to  pass  a  statute  for  the  protection  of  those  who 
choose  to  buy  property  subject  to  the  lien  of  an  execution, 
and  who  fail  to  provide  for  its  satisfaction. 

The  onl}'-  case  cited  on  the  argument,  was  Smith  v.  Mc- 
Leod,  3  Ire.  Eq.  390,  and  the  counsel  of  the  plaintiff' contend- 
ed there  was  a  direct  analogy  between  the  relation  of  a  suret}'' 
and  that  of  a  purchaser,  at  a  private  sale,  from  a  debtor,  of 
property  subject  to  tlie  lien  of  an  execution.  We  are  not  able 
to  perceive  the  supposed  analogy.  In  the  case  cited,  the 
Court  agree  there  is  no  ground  on  which  to  control  the  action 
of  the  sheriff  and  relieve  the  surety,  on  the  ground  of  a  privi- 
ty between  him  and  the  creditor,  by  reason  of  which,  the 
creditor  is  bound  to  let  the  surety  have  the  benefit  of  any  se- 
curity or  lien,  which  he  has  acquired  as  against  the  principal, 
and  decide  that  the  active  interference  of  the  creditor  in  with- 
drawing from  the  hands  of  the  sheriff'  an  execution,  under 


JUNE  TERM,  1862.  315 


Bevis  V.  Landi 


which  a  Hen  had  attached  to  the  property  of  the  principal, 
was  a  discharge  of  the  liability  of  the  surety  by  matter  in 
pais.  But  where  is  the  analog;y  ?  There  is  no  privity  of  re- 
lation between  the  creditor,  in  the  execution,  and  one  who 
chooses  to  purchase  a  part  of  the  property,  which  is  subject 
to  the  lien  of  his  execution.  On  the  contrary,  such  a  pur- 
chaser, at  private  sale,  is  a  stranger,  and,  in  "tact,  an  inter- 
meddling stranger,  who  had  no  business  to  buy  any  part  of 
the  debtor's  property,  without  taking  care  to  see  that  the  pri- 
or lien  was  satisfied. 

If  the  purchaser  atpiivate  sale  is  not  entitled  to  relief 
against  the  sheriff,  or  a  purchaser  under  tlie  execution  sale, 
when  the  sale  of  the  particular  slave  is  made  capriciously  or 
wantoidy  by  the  sheriff,  when  the  debtor  has  other  property, 
liable  to  execution,  tlie  case  is  mucii  stronger  against  him 
when  the  sheriff  having  received  other  executions,  junior  to 
the  i)rivate  sale,  thinks  it  to  be  his  duty  to  sell  the  particidar 
negro,  under  the  older  execution,  in  order  so  to  conduct  the 
business  as  to  satisfy  as  many  of  the  executions,  in  his  hands, 
as  the  property  of  the  debtor  can  be  made  to  reach.  For  the 
sheriff  acts  as  the  agent  of  all  the  creditors,  who  have  execu- 
tions put  into  his  hands,  and  his  conduct  tiien  is  not  capri- 
cious or  wanton,  but  in  pursuance  of  a  duty  to  tlie  creditoj-s 
imposed  on  him  by  having  the  executions  in  liis  hands. 

Kor  is  the  case  altered  by  the  fact  that  the  sheriff  and  the 
purciiaser  at  execution  sale,  had  an  interest  on  account  of  their 
liability,  as  tlie  surety,  or  otherwise,  of  tlie  debtor  in  the  exe- 
cution. The  sheriff  had  the  power,  under  the  older  execu- 
tion, to  sell  tliis  particnhir  negro.  It  was  his  duty  so  to  make 
the  sales,  as  to  cause  the  property  of  the  debtor  to  go  as  far  as 
possible  towards  discharging  all  the  executions  m\h  hands, 
and  neither  his  power  or  duty  could  be  affected  by  the  fact 
that  he  had  a  collateral  interest  which  was  subserved  by  the 
exercise  of  a  power  in  the  performance  of  his  duty,  and  this 
can  furnish  no  ground,  on  which  a  stranger,  who  chose  to  in- 
terf^ere,  can  base  any  rights  to  have  relief  in  equity. 
The  view  we  have  taken  of  the  case  makes  it  unnecessary 


316  m  THE  SUPREME  COURT. 

Lloyd  V.  Whitley. 

to  decide,  whether  tlie  plaintiiF  was  a  hona  jide  purchaser,  or 
one  who  liad  taken  a  bill  of  sale,  absolute  on  its  face,  which 
was  intended  as  a  mere  securit}',  that  fact  not  being  expressed 
on  the  face  of  the  bill  sale,  in  order  to  avoid  the  necessity  of 
giving  notoriety  to  it  by  registration,  so  as  to  enable  the  debt- 
or to  conceal,  for  a  time,  the  fact  of  his  insolvency. 

Per  Curiam,  Bill  dismissed. 


HENRY  S.  LLOYD  against  JOHN  B.  WHITLEY. 

Where  A  sued  B,  on  a  contract  about  the  getting  of  shingles,  and  a  comprom- 
ise was  made  in  writing,  to  the  effect  tliat  B  should  confess  judgment  for 
$500,  to  be  discharged  within  twelve  mouths  by  the  delivery  of  so  many 
shingles  at  given  prices,  and  a  judgment  was  entered  accordingly,  it  being 
admitted  that  the  shingles  were  to  be  paid  for  when  delivered,  at  the  prices 
agreed  on,  it  was  held  that  the  writing  and  the  judgment  were  but  an  ob- 
ligation to  pay  a  penal  sura,  and  the  court  directed  thatthejudgmentshould 
stand  as  a  security  for  the  damages  actually  sustained. 

Cause  removed  from  the  Court  of  Equity  of  Martin  county. 

The  plaintiff  and  defendant  having  had  a  controversy  at 
law  about  the  getting  of  shingles,  the  following  covenant  was 
entered  into  between  them,  viz ; 

"State  of  North  Carolina,  Edgecombe  county  : 

"  Whereas,  there  is  a  suit  pending  in  the  Superior  Court  of 
law  of  said  county,  wherein  Henry  S.  Lloyd  is  plaintiff,  and 
John  B.  Whitley  and  Newsom  Allsbrook  are  defendants,  and 
the  said  parties  are  anxious  to  compromise  the  said  suit ;  now 
these  articles  witness,  that  the  said  ^  hitley,  for  and  in  con- 
sideration of  the  obligation  hereinafter  undertaken  by  the  said 
Lloyd  will,  at  the  next  term  of  the  superior  court  of  law  of 
said  county,  to  be  held  on  2nd  Monday  of  this  month,  suffer 
the  said  Lloyd  to  enter  a  judgment  against  the  said  Whitley, 
for  the  sum  of  $500,  and  the  costs  of  the  suit,  and  will,  within 


JUNE  TEEM,  1862. 


twelve  monH,s  from  the  date  of  these  presents,  obtain  and 
™an,,.ac  „.o  „pon  the  lands  „f  the  said  Lloyd,  siUtatod  in  the 
cottnty  „  Marttn,  250,000  cvpt-oss  shingles,  (two  feet,  and  tli' 
y  inch  slungles,)  at  the  price  of  three  dollars  per  thons-md 
or  the  tinrty  inch  shingles,  and  two  dollars  per  tho,  an  1  Tor 
the  twenty  fonr  inch  shingles.  "lousand  toi 

"And  the  said  Lloyd,  i„  consideration  of  the  above  obbVa- 
ttons  does  bind  hnnself  not  to  snc  ont  execution  npon  the   ^id 

UnjsauWutley  shall  obtain  and  niannfactnre  the  shingles 
winch  he  has  contracted  to  ,io,  the  said  jndginent  s  a  "be 
considered  as  satisfied,  and  an  entry  to  that  effec  t  L 
made  upon  the  records  of  the  said  court."  Sig  i^d  .„d  ;  Ll 
by  the  parties,  8th  of  March,  1856.  Allsbro^k  ZCT 
come  insolvent  was  left  ont.  "iviu^  ne- 

In  piirsance  of  this  covenant  and  eompromise,  Whitley  on 
the  2nd  Monday  n  March  1856,  in  the  superior  conrt  o  E^e 
coinbe,  albwed  the  following  entry  to  be  made,  viz  T„d^ 
inent  confessed  by  the  defend-iMf  T  K  wr -.i  I  V  •'  ^ 
costs  of  snlf  V.i  !  "«'«"!■>"',  J-  B.  Whitley  tor  $500  and 
costs  ot  suit  E.vecution  in  this  case  to  be  stayed  for  twelve 
u.o,iths,and  it  is  agreed  between  the  parties, 'hat  te"  I 
ment  is  o  be  discharged  npon  the  perlbrinan  e  of  the  condl 
t.on  set  orth  in  the  written  agreement  between  them 

The  plaintifl  alleges  that  he  faithfully  endeavored  to  make 
the  shmg  es  he  agreed  to  make,  but  on  account  of  the  htgh 
water  in  the  swamp  pointed  out  to  him  by  Lloyd  and  his  ob 
sinate  retusa    to  let  him   work  in   drier  swamps  wh  ci  he 

about  40,620  thirty  ineh  shingles,  and  13,070  two  feet  shin<.les 
w^^cl.  were  accepted  by  one  Ray,  the  agent  of  defendant  Uovd 
The  defendant  took  ont  execution  on  this  judgment  returns 
ble  to  March  term  1857,  but  directed  the  slieritt™  to  Ike 
the  money.  After  that  term,  he  took  ont  an  alias  e.ecron 
and  gave  orders  for  its  enforcement.  The  mL  ZT  ' 
junction    insisting  that  the  said  jndg„:    t  is  on  1 1  UaUr 

r.rLTn;tSr?or ;:;::  "^  ^-'' - — 

t>     ppneu  101  an  injunction  in  proper  time,  that 


318  IN  THE  SUPKEME  COUKT. 

Lloyd  V.  Whitley. 

that  the  defendant  assured  him  that  he  did  not  intend  to  col- 
lect the  money  within  two  years,  and  that  he  meant  to  give 
him  every  opportunity  to  make  the  shingles  in  pursuance  of 
the  condition.  The  plaintiff  alleges  that  besides  the  price  of 
the  shingles,  he  did  twenty  day's  work  with  one  hand,  in 
boating  shingles,  for  which  he  received  no  pay.  The  plaintiff 
also  prays  that  the  defendant  shall  pay  him  for  the  shingles  he 
obtained  and  delivered  to  the  defendant,  and  for  payment  for 
boating ;  asks  for  an  account  for  the  purpose  of  ascertaining 
what  is  due  to  him  and  also  what  damages  are  due  the  defend- 
ant for  his  failure  to  perform  the  contract,  which  he  is  willing 
to  pay,  and  for  general  relief. 

The  defendant  in  his  answer  insists  that  this  entry  of  $500 
is  not  a  penalty,  but  was  agreed  upon  and  entered  as  liqui- 
dated damages  in  case  the  contract  should  not  be  performed 
by  Whitley.  He  denies  that  he  made  any  promise,  or  other- 
wise, deluded  the  plaintiff  as  to  the  issuing  of  the  execution, 
but  he  admits  that  he  is  bound  to  pay  the  prices  agreed  upon, 
for  the  shingles  delivered,  and  as  to  that,  he  says  that  the 
plaintiff  is  largely  indebted  to  him  on  other  accounts,  and  pro- 
poses to  set  off  the  amount  thus  due,  with  such,  his  counter 
claims. 

The  bill  was  filed  at  spring  term  1858.  "Was  continued  at 
fall  term  1858.  Was  set  for  hearing  on  bill  and  answer  at 
spring  term  1859,  and  by  consent,  sent  it  to  this  court.  Mo- 
tion below  to  dissolve  the  injunction.  The  transcript  says, 
"  sent  by  consent  to  the  Supreme  Court." 

Winston,  Jr.,  for  the  plaintiff. 
B.  F.  Moore,  for  the  defendant. 

Peakson,  C.  J.  The  jurisdiction  of  the  Court  of  Equity  to 
prevent  the  enforcement  of  penalties  on  payment  of  the  dam- 
ages sustained  by  reason  of  a  breach  of  the  condition,  was  so 
obviously  necessary  to  the  ends  of  justice,  that,  in  most  cases, 
relief  is  now  given  at  law,  by  statutes,  which  require  the 
plaintiff  to  suggest  breaches,  and  provides  for  the  ascertain- 


JUNE  TERM,  1862.  319 


Lloyd  V.  Whitley. 


mentofthe  damages,  whereupon  judgment  is  to  be  entered 
for  the  penalty,  but  the  execution,  which  may  issue  thereon, 
is  to  be  satisfied  by  the  payment  of  the  damages  assessed,  to- 
gether with  the  costs. 

The  plaintiff  insists,  that  by  a  proper  construction  of  the 
judgment,  and  the  covenant  referred  to,  the  sum  of  $500  is  a  pen- 
alty to  be  discharged  upon  the  performance  of  the  condition 
set  forth  in  the  covenant,  to  wit:  that  the  plaintiff  shall,  in 
twelve  months  make  for  the  defendant  250,000  shingles  two 
feet  and  thirty  inch  shingles  at  the  price  of  $2  per  thousand, 
for  the  two  feet,  $3  per  thousand  for  the  thirty  inch  shingles, 
alleges  a  part  performance  of  the  condition,  and  submits  to 
pay  the  damages  sustained  by  the  defendant,  by  reason  of 
his  failure,  in  respect  to  the  number  of  the  shingles  which  he 
has  failed  to  make,  and  prays  that  the  defendant  may  be  en- 
joined from  enforcing  the  collection  of  the  $500. 

The  defendant  insists  that  the  $500  is  not  a  penalty,  but 
liquidated  damages  and  claims  the  right  (the  plaintiff  having 
failed  to  discharge  the  judgment  in  the  manner  by  which  he 
was  allowed  to  do  it,  under  the  covenant)  to  enforce  its  col- 
lection, subject  to  a  credit  for  the  shingles  got  by  the  plaintiff, 
which  the  defendant  admits  he  is  bound  to  pay  for  at  the 
agreed  prices,  and  on  his  part  claims  a  deduction  for  certain 
credits. 

The  question  is  one  of  construction,  and  it  seems  to  us  a  ve- 
ry plain  one.  The  judgment,  on  its  face,  is  to  be  discharged 
upon  the  ferformancG  of  the  condition  set  forth  in  the  written 
agreement  between  them.  That  is,  the  judgment  is  to  be  void, 
provided  the  plaintiff  makes  for  the  defendant  250,000  shin- 
gles at  the  prices  agreed  on.  So  it  is  neither  more  nor  less 
than  a  penalty,  by  which  to  enforce  the  performance  of  an 
agreement,  on  the  part  of  the  plaintiff,  to  make  for  the  de- 
fendant a  certain  number  of  shingles  at  certain  prices  for  the 
several  descriptions.  Had  the  $500,  for  which  the  judgment 
is  entered,  been  liquidated  damages,  that  is,  an  amount  which 
it  was  agreed  the  plaintiff  owed  the  defendant,  but  which  he 
was  williug  to  allow  the    plaintiff  to   pay   in  shingles,   it 


320  m  THE  SUPEEME  COUET. 


Lloyd  V.  Whitley. 


would  have  been  set  out  in  the  covenant  and  judgment,  that 
the  $500  was  to  be  paid  in  shingles,  to  be  got  on  the  defend- 
ant's land,  for  which  the  plaintiff"  was  to  be  allowed  certain 
prices  per  thousand.  This  is  not  the  language  used,  and  it  is  per- 
fectly certain  that  the  shingles  were  to  be  ^x«'^  for  by  the 
defendant,  and  were  not  to  be  accepted  by  him  in  payment  of 
the  judgment.  Indeed,  the  defendant  admits  by  his  answer, 
that  he  "  is  bound  to  pay  the  plaintiff  forthe  shingles  got,  at  the 
agreed  prices."  The  fact  of  his  being  bound  to  pay  for  the 
shingles  got,  is  wholly  inconsistent  with  the  suggestion,  that 
the  plaintiff  was  indebted  to  him  to  the  amount  of  $500  ;  for 
if  so,  of  course  the  shingles  ought  to  be  applied  in  payment 
of  the  debt,  whereas,  from  the  face  of  the  judgment  and  of 
the  covenant,  and  by  the  admission  of  the  defendant,  he  was 
to  pay  for  the  shingles,  and  they  were  not  to  go  in  payment 
of  the  judgment;  in  other  words,  the  judgment  was  to  be 
held  in  terrorem,  in  order  to  force  the  plaintiff  to  make  for 
the  defendant  250,000  shingles,  for  which,  when  made,  the 
defendant  was  to  pay  the  plaintiff  the  prices  agreed  on. 

The  mode  of  argument  Tediictio  ad  dbsurdum,  will  demon- 
strate, by  figures,  that  the  $500  was  not  a  debt  to  be  paid  by 
250,000  shingles,  of  the  two  descriptions,  at  the  prices  fixed 
on: 

250,000  at  $2  per  thousand,  is  $500 

250,000  at  $3  per  thousand,  is  750 

125,000  at  $2  per  thousand,  is  $250 

125,000  at  $3  per  thousand,  is  375 625 

166,000  at  $3  per  thousand,  is  500 

So  the  matter  cannot  be  worked  out  by  figures,  unless  all  the 
shingles  are  of  one  description,  that  is,  two  feet,  leaving  no 
room  for  a  single  thirty  inch  shingle. 

We  are  satisfied  that  the  $500  was  a  penalty,  and  the  judg- 
ment was  taken  as  a  security  for  the  making  of  an  agreed  num- 
ber of  shingles  at  the  prices  agreed  on  for  the  several  descrip- 
tions. 

The  plaintiff  having  failed  to  perform  the  conditions,  be- 
came liable,  at  law,  for  the  penalty,  but  is  entitled  in  equity 


JUNE  TEflM,  1862.  321 


Lloyd  V.  Whitley. 


to  be  relieved  of  the  penalty  by  making  satisfaction  for  the 
damages,  which  the  defendant  has  sustained,  by  reason  of  the 
breach  of  the  condition. 

There  will  be  a  decree  acccordingly,  and  a  reference  to  as- 
certain the  amount  of  damages,  allowing  the  plaintiff  for  the 
number  of  shingles  got,  and  for  his  labor  in  "  boating  the 
shingles,"  if  that  allegation  is  proved,  and  allowing  the  de- 
fendant for  the  payments  alleged  to  have  been  made  to  the 
hands  of  the  plaintiff  for  the  work  done  by  them  upon,  and 
in  respect  to  the  shingles,  but  no  item  of  charge  or  discharge, 
which  did  not  grow  out  of,  and  concern  the  making  of  the 
shingles,  will  be  taken  into  the  account. 

The  motion  to  dissolve  the  injunction,  on  the  ground,  that 
it  was  improvidently  granted,  not  having  been  appealed  from 
within  the  time  prescribed  by  the  statute,  is  not  allowed,  for 
the  case  is  now  before  us  on  the  final  hearing,  being  set  for 
hearing  on  the  "  bill  and  answer"  in  the  Court  below,  and 
removed  to  this  Court  for  hearing,  no  disposition  having  been 
made  of  the  motion  to  dissolve  the  injunction,  the  reasoning 
of  the  Court  in  Smith  v.  McLeod,  3  Ire.  Eq.  400,  applies  with 
full  force ;  for,  although  that  case  had  reference  to  the  piovi- 
eions  of  the  Revised  Statutes,  and  this  depends  upon  the  Rev. 
Code,  yet,  here  is  the  fact,  we  decree  for  the  plaintiff  "  on  the 
equity,  confessed  by  the  answer,"  and  make  the  injunction 
perpetual,  except  as  to  the  damages.  So,  of  course,  the  mo- 
tion to  dissolve,  on  the  ground,  that  the  injunction  was  im- 
providently granted,  in  the  first  instance,  is  out  of  time. 

This  view  makes  it  unnecessary  to  express  an  opinion  on 
the  point  as  to  whether  the  fiat,  made  by  the  Judge  below  on 
the  averments  of  the  bill,  was  not  a  matter  of  discretion,  and, 
of  course,  not  the  subject  of  review. 

Pee  Cusiam,  Reference  ordered. 


322  IN  THE  SUPKEME  COTJET. 


Joyner  v.  J  oyner. 


JOYNER  agains  JOYNER. 

There  are  circumstances,  under  which  the  striking  of  his  -wife  with  a  horse- 
whip, or  switch,  by  a  husband,  and  inflicting  bruises,  would  not  be  the 
ground  of  a  divorce.  Where,  therefore,  such  voilence  was  made  the  ground 
of  an  application  for  a  divorce,  it  was  held  to  be  necessary,  that  the  bill,  or 
petition,  should  set  forth  particularly  and  specially,  what  she  did  and  said 
immediately  prior  to,  and  during  such  use  of  force. 

This  is  an  appeal  from  an  interlocutory  order  of  Judge  Os- 
borne, in  the  Court  of  Equity  of  JS'orthamton  county,  allow- 
ing to  the  pititioner  for  a  divorce,  ?iX\m.ony pendente  lite. 

The  petioner  states  that  she  was  the  widow  of  one  David 
Futrell,  and  interniarried  with  the  defendant  in  !N"ovember, 
1860;  that  she  had  a  reasonable  prospect  of  happiness  from  the 
marriage,  herself  well  bred,  and  O'f  a  respectable  family,  and 
her  husband  not  less  than  a  fair  match  for  her;  that  in  this  she 
was  greatly  disappointed  ;  that  her  husband  manifested  great 
coarseness  and  brutality,  "and  even  inflicted  the  most  severe 
corporal  punishment.  This  he  did  on  two  different  occasions, 
once  with  a  horse-whip,  and  once  with  a  switch,  leaving  sev- 
eral bruises  on  her  person."  "  He  used  towards  her,  abusive 
and  insulting  language,  accused  ber  of  carrying  away  articles 
of  property  from  his  premises,  to  her  daughter  by  a  former 
husband  ;  refused  to  let  said  child  live  with  her  ;  has  frequent- 
ly, at  night,  after  she  had  retired,  driven  her  from  bed,  saying 
tliat  it  was  not  hers,  and  that  she  should  not  sleep  upon  it. — 
He  has  also  forbade  her  sitting  down  to  his  table  in  company 
with  his  family,"  and  that  "  by  such  like  acts  of  violence  and 
indignit}^  has  forced  her  to  leave  his  house,  and  that  she  is 
now  residing  with  lier  friends  and  relatives,  having  no  means 
of  suppoi-t  for  herself,  and  an  infant  son^  born  within  the  four 
past  weeks."  These  facts,  the  ground  of  this  her  complaint, 
have  existed  at  least  six  months  prior  to  the  filing  of  this  bill. 
"Your  petitioner,  during  the  whole  time  of  her  intermarriage 
with  the  defendant,  saith  that  she  has  been  a  dutiful,  faithful 
and  affectionate  wife,  and  desired  so  to  continue  during  life, 
but  the  outrages  upon  her  person  and  rights,  have  made  it  ber 


JUNE  TERM,  1862.  325 

Joyner  v.  Joyner. 

desire,  as  well  as  duty,  to  seek  a  perpetual  separation  from 
his  bed,  his  board,  and  from  the  bonds  of  matrimony."  The 
bill  prays  accordingly  and  for  alimony. 

At  the  term  to  which  the  process  was  returnable,  the  plain- 
tiff's counsel  moved  for  alimony  2}^'>^dente  lite,  when  the  fol- 
lowing  order  was  made  :  "This  cause  coming  on  to  be  heard, 
it  is  ordered  upon  hearing  of  the  cause,  and  upon  affidavits, 
as  to  the  estate  of  the  defendant,  that  the  clerk  and  master  give 
notice  to  the  defendant,  to  pay  into  the  office  of  the  clerk  and 
master  for  Northamtou  county,  the  sum  of  $350,  as  alimony, 
for  the  subsistance  for  the  said  plaintiff  and  her  child,  until 
the  next  term  of  the  court,  and  that  the  payment  of  the  above 
sum  be  made  on,  or  before,  the  15th  day  of  December  1861." 

From  this  order,  the  defendant  prayed  an  appeal  to  the 
Supreme  Court,  which  was  granted. 

Barnes  for  the  plaintiff. 
W.  N.  E.  Smith  for  the  defendant. 

Peakson,  C.  J.  The  Legislature  has  deemed  it  expedient 
to  enlarge  the  grounds,  upon  which  divorces  may  be  obtained  ; 
but  as  a  check  or  restraint  on  applications  for  divorces,  and  to 
guard  against  abuses,  it  is  provided,  that  the  cause  or  ground 
on  which  the  divorce  is  asked  for,  shall  be  set  forth  in  the  pe^ 
tition  "particularly  and  specially."  It  is  settled  by  the  decis- 
ions of  tliis  Court,  tliat  this  provision  of  the  statute  must  be 
strictly  observed,  and  the  cause,  or  causes  for  which  the  di- 
vorce is  prayed,  must  be  sot  forth  so,  "particularly  and  speci- 
ally," as  to  enable  the  court  to  see  on  the  face  of  the  petition, 
that  if  the  facts  alleged  are  true,  the  divorce  ought  to  be  gran- 
ted :  Everton  v.  Everton,  5  Jones'  202.  The  correctness  of 
this  construction  is  demonstrated  by  the  fact,  that,  u])on  ap- 
peals from  an  order,  allowing  alimony  pending  tlie  suit,  like 
the  present,  this  Court  is  confined  expressly  to  an  examination 
of  the  cause  or  causes  of  divorce,  as  set  out  on  the  face  of  the 
petition,  and  can  look  at  nothing  else,  in  making  up  the  de- 
cision :  Rev.  Code,  chap.  40,  sec.  15. 


324  IN  THE  SUPKEME  COUKT. 

Joyner  v.  Joyner. 

Bj  tlie  rules  of  pleading  in  actions  at  the  common  law,  ev- 
ery allegation  of  fact,  must  be  accompanied  by  an  allegation 
of  "time  and  place."  This  rule  was  adopted  in  order  to  in- 
sure pi-oper  certainty  in  pleading,  but  a  variance  in  the  alle- 
gata Find 2yrohata,  that  is  a  failure  to  prove  the  precise  time 
and  place,  as  alleged  in  the  pleading,  was  held  not  to  be  fatal, 
unless  time  or  place  entered  into  the  essence  and  made  a  ma- 
terial part  of  the  fact  relied  on,  in  the  pleading. 

There  is  nothing  on  the  face  of  this  petition  to  show  us  that 
time  was  material,  or  a  part  of  the  essence  of  the  alleged  cause 
of  divorce;  that  is,  that  the  blows  were  inflicted  at  a  time 
when  the  wife  was  in  a  state  of  pregnancy,  with  an  intent  to 
cause  a  miscarriage,  and  put  her  life  in  danger,  and  there  is 
nothing  to  show  us  that  the  place  was  a  part  of  the  essence  of 
the  cause  of  divorce,  that  is,  that  the  blows  were  inflicted  in 
sipuhlic  place,  with  an  intent  to  disgrace  her  and  make  her 
life  insupportable,  so  we  are  inclined  to  the  opinion  that  it 
was  not  absolutely  necessary  to  state  the  time  and  place,  or  if 
stated,  that  a  variance  in  the  proof,  in  respect  to  time  and 
place,  would  not  be  held  fatal. 

But  we  are  of  opinion  that  it  was  necessary  to  state  the  cer- 
cumstances,  under  which  the  blow  with  the  horse-whip,  and 
the  blows  with  the  switch  were  given  ;  for  instance,  what  was 
the  conduct  of  the  petitioner;  what  had  she  done,  or  said,  to 
induce  such  violence  on  the  part  of  the  husband  ?  We  are 
informed  by  the  petitioner  that  she  was  a  woman,  "well-bred, 
and  of  respectable  family,  and  that  her  husband  was  not  less 
than  a  fair  match  for  her."  There  is  no  allegation  that  he 
was  drunk,  nor  was  there  any  imputation  of  unfaithfulness 
on  either  side,  (which  is  the  most  common  ingredient  of  ap- 
plications for  divorce,)  so  there  was  an  obvious  necessity  for 
some  explanation,  and  the  cause  of  divorce  could  not  be  set 
forth,  "particularly  and  specially,"  without  stating  the  circum- 
stances which  gave  rise  to  the  alleged  grievances. 

It  was  said  on  the  argument,  that  the  fact,  that  a  husband, 
on  one  occasion,  "struck  his  wife  with  a  horse-whip,  and  on 
another  occasion,  with  a  switch,  leaving  several  bruises  on  her 


•     JUNE  TEEM,  1862.  325 

Joyner  v.  Joyner. 

person,"  is,  of  itself ,  a  sufficient  cause  of  divorce,  and  conse- 
quently the  circumstances  which  attended  the  infliction  of 
these  injuries,  are  immaterial,  and  need  not  be  set  forth.  This 
presents  the  question  in  the  case: 

The  wife  must  be  subject  to  the  husband.  Every  man 
must  govern  his  household,  and  if  by  reason  of  an  unruly  tem- 
per, or  an  unbridled  tongue,  the  wife  persistently  treats  her 
husband  with  disrespect,  and  he  submits  to  it,  he  not  only 
loses  all  sense  of  self-respect,  but  loses  the  respect  of  the  other 
members  of  his  family,  without  which,  he  cannot  expect  to 
govern  them,  and  forfeits  the  respect  of  his  neighbors.  Such 
have  been  the  incidents  of  the  marriage  relation  from  the  be- 
ginning of  the  human  race.  Unto  the  woman  itissaid,  "Thy 
desire  shall  be  to  thy  husband,  and  he  shall  rule  over  thee," 
Genesis,  chap.  3,  v.  16.  It  follows  that  the  law  gives  the  hus- 
band power  to  use  such  a  degree  of  force  as  is  necessary'  to 
make  the  wife  behave  herself  and  know  her  place.  Why  is 
it,  that  by  the  principles  of  the  common  law,  if  a  wife  slan- 
ders or  assaults  and  beats  a  neighbor,  the  husband  is  made  to 
pay  for  it?  Or  if  the  wife  commits  a  criminal  offense,  less 
than  felony,  in  the  presence  of  her  husband,  she  is  not  held 
responsible?  AVhy  is  it,  that  the  wife  cannot  make  a  will 
disposing  of  her  land  ?  and  cannot  sell  her  land  without 
a  privy  examination,  "separate  and  apart  from  her  hus- 
band," in  order  to  see  that  she  did  so  voluntarily,  and  with- 
out compulsion  on  the  part  of  her  husband  ?  It  is  for  the 
reason  that  the  law  gives  this  power  to  the  husband  over  the 
person  of  the  M'ife,  and  has  adopted  proper  safe-guards  to  pre- 
vent an  abuse  of  it. 

We  will  not  pursue  the  discussion  further.  It  is  not  an 
agreeable  subject,  and  we  are  not  inclined,  unnecessarilj^  to 
draw  upon  ourselves  the  charge  of  a  want  of  proper  respect 
for  the  weaker  sex.  It  is  sufficient  for  our  purpose  to  state 
that  there  ma}^  be  circumstances,  which  will  mitigate,  excuse, 
and  60  far  justify  the  husband  in  striking  the  wife  "  with  a 
horse-whip  on  one  occasion  and  with  a  switch  on  another, 
leaving  several  bruises  on  the  person,"  so  as  not  to  give  her  a 


326  IN  THE  SUPREME  COURT. 

Joyner  v.  Joyner. 

right  to  abandon  him  and  claim  to  be  divorced.  For  instance: 
suppose  a  husband  comes  home  and  his  wife  abuses  him 
in  the  strongest  terms — calls  him  a  scoundrel,  and  repeatedly 
expresses  a  wish  that  he  was  dead  and  in  torment!  and  being 
thus  provoked  in  the  furor  hrevis^  he  strikes  her  with  the 
horse-whip,  which  he  happens  to  have  in  his  hands,  but  is  af- 
terwards willing  to  apologise,  and  expresses  regret  for  having 
struck  her  :  or  suppose  a  man  and  his  wife  get  into  a  discus- 
sion and  have  a  difference  of  opinion  as  to  a  matter  of  fact, 
she  becomes  furious  and  gives  way  to  her  temper,  so  far  as  to 
tell  him  he  lies,  and  upon  being  admonished  not  to  repeat  the 
word,  nevertheless  does  so,  and  the  husband  taking  up  a 
switch,  tells  her,  if  she  repeat  it  again,  he  will  strike  her,  and 
after  tliis  notice,  she  again  repeats  the  insulting  words,  and  he 
thereupon  strikes  her  several  blows  ;  these  are  cases,  in  which, 
in  our  opinion,  the  circumstances  attending  the  act,  and  giv- 
ing rise  to  it,  so  far  justify  the  conduct  of  the  husband,  as  to 
take  from  the  wife  any  ground  of  divorce  for  that  cause,  and 
authorise  the  Court  to  dismiss  her  petition,  with  the  admoni- 
tion, "  if  you  will  amend  your  manners,  you  may  expect  bet- 
ter treatment ;"  see  Shelford  on  Divorce.  So  that  there  are 
circumstances,  under  which  a  husband  may  strike  his  wife 
with  a  horse-whip,  or  may  strike  her  several  times  with  a 
switch,  so  hard  as  to  leave  marks  on  her  person,  and  these  acts 
do  not  furnish  sufficient  ground  for  a  divorce.  It  follows  that 
when  such  acts  are  alleged  as  the  causes  for  a  divorce,  it  is 
necessary  in  order  to  comply  with  the  provisions  of  the  stat- 
ute, to  state  the  circumstances  attending  the  acts,  and  which 
gave  rise  to  them. 

It  was  suggested  that  the  averment  at  the  conclusion  of  the 
petition,  which  is  made  after  the  averment,  "that  the  facts 
which  are  made  the  ground  of  this  complaint,  have  existed  at 
least,  six  months  prior  to  the  filing  of  this  bill;"  "  your  peti- 
tioner daring  the  whole  time  of  her  intermarriage  with  de- 
fendant, saith  that  she  has  been  a  dutiful,  faithful  and  affec- 
tionate wife,  and  desired  so  to  continue  during  life,  but  the 
outrages  upon  her  person,  and  rights,  have  made  it  her  desire 


JUNE  TERM,  1862.  327 


Herndon  v.  Pratt. 


as  well  as  duty,  to  seek  a  perpetual  separation  from  him,  "is 
sufficient  to  supply  the  defect  in  not  setting  out,  "particularly 
and  specially,"  the  circumstances  under  which  the  blows  were 
inflicted  on  her  person. 

We  do  not  think  a  general  averment  of  this  kind,  uncon- 
nected as  it  is,  with  the  allegations  of  fact,  can  be  allowed  to 
have  the  effect  of  the  particular  and  special  statement,  which 
the  statute  requires.  It  is  not  traversable,  and  we  cannot  say, 
as  a  conclusion  of  law,  what  may,  in  her  opinion,  be  such 
conduct,  as  is  consistent  with  the  character  of  a  dutiful,  faith- 
ful and  affectionate  wife.  It  is  unnecessary  to  notice  the  oth- 
er n)atters  of  complaint,  set  out  iu  tii-e  petition,  because  they 
are  admitted  not  to  be,  of  themselves,  sutHcient,  and  are  put  in  as 
makeweights  or  pr opts  of  the  main  causes,  which  we  have  ful- 
ly adverted  to. 

Nor  is  it  necessary  to  notice  the  objection,  because  of  the 
fact,  that  the  bill  had  not  been  exhibited  to  a  Judge,  and  his 
fiat  for  process  obtained. 

There  is  error ;  the  decretal  order  will  be  reversed,  and  this 
opinion  will  be  certified,  to  the  end  that  the  court  of  equi- 
ty below  may  proceed.    ■ 

Per  Curiam,  Decretal  order  reversed. 


MATURIN  HERNDON  and  others  against  WM.  N.  PRATT  and  others. 

An  administrator  durante  minoritate  is  liable  for  a  devastavit  to  the  executor, 
who  qualifies  after  coming  of  age,  anS  if  such  executor  abstain  for  ten  years 
from  bringing  suit,  liis  cause  of  action  is  presumed  to  have  been  satisfied, 
released  or  abandoned.  So  that  persons  having  a  contingent  interest  in 
remainder,  which  is  injured  by  such  devastavit,  must  look  to  the  executor 
and  not  to  the  administrator  durante  minoritate,  or  the  sureties  on  his  ad- 
minislration  bond. 

No  suit,  in  equity,  can  be  brought  to  follow  slaves,  limited   in   contingent  r«- 


328  IN  THE  SUPREME  COURT. 

Herndou  v.  Pratt. 

mainder,  in  the  hands  of  one  claiming  a  present  defeasible  interest,  after  the 
slaves  have  died ;  they  having  died  in  the  life-time  of  the  first  taker. 

Where  slaves,  limited  in  remainder  on  a  contingency,  were  sold  under  an  ex- 
ecution against  one  claiming  a  present,  absolute  interest,  it  was  held  that 
the  purchaser  under  such  execution,  who  took  possession  and  held  them 
for  more  than  three  years  got  a  title  by  the  statute  of  limitations. 

Where  the  statute  of  limitations  is  a  bar  to  a  trustee,  it  is  also  a  bar  to  the 
cestui  qui  trust,  for  whom  he  holds  the  title. 

Cause  removed  from  the  Court  of  Equity  of  Orange  county. 

Joseph  Dickson,  of  the  county  of  Orange,  died  in  the  year 
1834,  having  made  his  last  will  and  testament;  among  the  be- 
quests, in  which  will,  is  the  following  :  "I  give  and  bequeath 
to  my  respected  friends,  Hugh  Waddell,  Robert  W.  Dicksonj 
and  Priestly  H.  Mangum,  attornies  at  law,  and  to  the  surviv- 
ors of  them,  the  executors  and  administrators  of  the  survivor, 
in  trust,  one  negro  woman,  named  Coelia,  one  negro  woman, 
Milly,  one  negro  boy,  named  Harry,  one  boy,  named  Jack- 
son, one  negro  fellow,  named  Davie,  one  negro  boy,  named 
Prince,  the  land  and  premises  where  I  now  live,  with  all  my 
stock,  &c.,  to  be  applied  to  tiie  maintenance  and  support  of 
my  daughter,  Julia  Neville  Dickson,  and  my  grandson,  Ro- 
bert William  Dickson,  until  he  an-ives  at  mature  age,  in  such 
manner  and  in  such  way  as  they,  in  their  discretion,  may 
deem  most  suitable  to  their  circumstances,  and  it  is  my  will  and 
desire,  that  on  the  death  of  my  daughter,  Julia  IST.  Dickson, 
the  said  trustee,  or  survivor  of  them,  or  the  executors  or  ad- 
ministrators of  the  survivor  of  them,  do  give  all  my  estate, 
hereb}^  given  to  them,  in  trust,  for  the  maintenance  and  sup- 
port of  my  said  daugliter,  Julia  N".  Dickson,  to  my  grandson, 
Robert  Wm.  Dickson,  hereinbefore  mentioned."  And  by  a 
codicil  to  said  will,  he  bequeathed  as  follows  :  "  If  Robert  Wm. 
Dickson  should  die  before  my  daughter,  Julia  IST.  Dickson, 
then  the  property,  I  willed  him,  to  go  to  my  daughter,  Mary 
M.  Herndon,  and  at  her  death,  to  be  equally  divided  between 
her  children  and  Mary  Ann  Dickson  and  Caroline  Dickson, 
now  the  wife  of  Joseph  B.  Marcom."  Hugh  Waddell,  P.  H. 
Mangum,  and  the  said  Robert  Wm.  Dickson,  were  appointed 


JUNE  TERM,  1862.  329 

Herndon  v.  Pratt. 

executors  as  well  as  trustees  to  this  will,  of  whom,  the  last 
mentioned,  was  under  age  at  the  time  of  the  death  of  the  tes- 
tator, and  the  other  two,  Messrs.  Waddell  and  Manguin,  re- 
nounced the  office  of  executor,  formally,  and  refused  entirely  to 
act  as  trustee  ;  whereupon,  at  May  Term,  1834,  of  Orange 
County  Court,  the  said  Julia  N.  Dickson  was  appointed  ad- 
ministratix,  with  the  will  annexed,  during  the  minority  of  Ro- 
bert W.  Dickson  ;  but  at  February  Term,  1836,  of  that  coun- 
ty court,  the  latter  having  become  of  age,  came  into  court 
and  qualified  as  executor,  under  the  will.  The  said  Julia 
N.  Dickson  on  being  appointed,  instead  of  giving  a  bond,  con- 
ditioned to  discharge  the  office  of  administratrix  c?wi  testamen- 
to  annexo  durante  oninoritate,  gave  a  bond  as  administratrix 
generally,  and  a  printed  form,  applicable  to  the  latter  office, 
was  filled  up  by  the  clerk,  through  a  mistake,  and  executed 
by  her  with  the  defendants,  William  IST.  Pratt  and  Anderson 
Clements,  as  her  sureties,  in  the  penal  sum  of  $6000.  The  said 
Pratt  and  Clements,  at  the  time  of  becoming  Such  sureties,  took 
a  deed  of  trust  from  Julia  Dickson,  embracing  most  of  the 
slaves,  bequeathed  as  above,  for  their  indemnity.  The  said 
Julia  took  possession  of  the  land,  negroes  and  other  property, 
amounting,  in  value,  to  $3000.  Shortly  afterwards,  she  mar- 
ried one  Samuel  Merritt,  a  very  dissolute  and  wasteful  man, 
and  although  he  entered  into  marriage  articles  not  to  sell  any 
of  the  property  of  his  wife,  without  her  consent  and  that  ofR.  W". 
Dickson,  he  and  she  together  sold  and  wasted  most  of  the  per- 
sonal estate  ;  several  of  the  slaves  and  the  land  were  levied  on 
by  executions  against  Merritt,  and  sold  to  divers  persons,  among 
which,  a  slave,  by  the  name  of  Madison  or  Bob,  was,  in  1836, 
sold  to  the  defendant,  David  George,  who  took  the  slave  into 
possession  and  has  held  him  adversely  ever  since.  Two  other 
slaves,  Coelia  and  her  child,  Jim,  and  another  slave,  were 
sold  about  the  same  time,  under  an  execution  in  like  manner 
issuing  against  the  said  Samuel  Merritt,  and  bought  by  the 
defendant,  John  Hayes,  who  took  the  sheriff's  title  to  the 
same,  and  has  held  the  possession  ever  since.  Two  other 
slaves,  named  Harry  and  Prince,  were  sold  by  Robert  W". 


330  IN  THE  SUPREME  COURT. 

Herndon  v.  Pratt. 

Dickson,  the  executor,  after  he  qualified,  to  the  defendant, 
William  N".  Pratt,  who  took  the  same  into  his  posession  and 
held  them  for  several  years,  but  both  these  slaves  died  in  the 
life-time  of  the  said  Robert  W.  Dickson. 

The  bill  is  filed  by  the  administrator  of  Mary  M.  Herndon 
and  her  children,  and  the  administrator  of  Robert  W,  Dick- 
son, and  the  administrator  de  bonis  non  of  Joseph  Dickson 
and  Mary  Ann  Dickson  and  Caroline  Dickson,  alleging  that 
Robert  William  Dickson  died  in  the  year  1853,  leaving  the 
said  Julia  IST.  Dickson  (now  Merritt)  surviving,  and  that  by 
the  said  codicil,  they  are  entitled  to  the  whole  of  the  said  pro- 
perty, with  its  increase  and  profits,  reserving  to  the  said  Julia 
N.  Dickson  a  subsistence  out  of  the  same.  They  allege  that 
Robert  W.  Dickson  was  a  weak,  drunken,  stupid  person,  en- 
tirely incapable  of  managing  property,  and  that  he  was  a  mere 
instrument  in  the  hands  of  Merritt  and  his  wife  and  William 
N.  Pratt ;  that  Pratt  encouraged  these  prodigal  habits  and 
dissipated  courses  in  young  Dickson,  by  furnishing  him  with 
ardent  spirits,  and  he  combined  with  the  others  to  squander 
the  property  while  it  was  in  the  hands  of  the  administratiix 
Cfum.  tes.  an.  and  encouraged  and  stimulated  Robert,  the  ex- 
ecutor, to  do  the  same  after  he  qualified  ;  that  in  fact,  Robert 
W.  Dickson  never  interferred  with  the  property  after  he  qual- 
ified, but  permitted  the  said  JuKa  and  her  husband,  Merritt, 
with  the  concurrence  of  the  two  sm-eties,  Pratt  and  Clements, 
to  go  on  and  sell  and  waste  the  property  as  they  had  been 
doing.  The  bill  alleges  that  Hays  and  George  were 
cognizant  of  all  these  doings,  and  that  they  purchased  the 
slaves,  above  stated,  with  full  notice  of  plaintifis'  equity. — 
They  allege  that  the  processes,  under  which  these  sales  took 
place,  were  merely  pretended,  in  order  to  enable  these  pur- 
chasers to  get  the  property  in  this  way.  They  show  that  all 
the  said  property  has  gone  out  of  the  hands  of  the  said  Julia 
N.  Merritt,  and  that  her  husband  has  left  her,  and  both  are 
insolvent  :  that  Robert  W.  Dickson  died  without  any 
of  the  estate  in  his  hands,  and  utterly  insolvent.  The  prayer 
is  to  subject  Pratt  and  Clements,  the  sureties  of  Julia  N. 


JUNE  TEEM,  1862.  331 


Herndon  v.  Pratt. 


Dickson,  as  if  the  bond  had  been  taken  as  it  was  intended  ; 
and  to  make  them  liable  for  all  the  property  wasted  by  Mer- 
ritt  and  his  wife ;  also  to  follow  the  slaves,  Harry  and  Prince, 
in  the  hands  of  Pratt,  and  the  slave,  Madison  or  Bob,  in  the 
hands  of  David  George,  and  Coelia  and  Jim  and  Coelia's  in- 
crease since  the  sale,  in  the  hands  of  Hays. 

Also,  that  an  account  may  be  taken  under  the  direction  of 
this  court,  of  the  whole  of  the  trust  fund,  with  the  rents,  hires 
and  interest  accrued,  and  that  the  same  may  be  placed  in  the 
hands  of  a  trustee,  or  in  the  hands  of  plaintiffs,  on  giving  bond 
to  support  Julia  N.  Merritt,  during  her  life,  and  for  general 
relief. 

The  answers  of  the  defendants,  deny  all  fraud  and  combin- 
ation, and  insist  upon  the  statute  of  presumption  of  satisfac- 
tion, and  Hays  and  George  plead  and  insist  upon  the  statute 
of  limitations. 

The  cause  was  set  for  hearing  on  bill,  and  amended  bill,  and 
answers,  and  proofs,  and  exhibits,  and  sent  to  this  Court  by 
consent, 

Graham  and  Norwood  for  the  plaintiff. 

J.  H.  Bryan  and  Winston^  Sr..  for  the  defendants. 

Peakson,  C.  J.  1st.  The  perishable  property  and  the  negro 
which  was  sold  by  the  administratrix,  with  the  will  annexed, 
durante  niinoritate : 

The  bill  seeks  to  charge  Pratt  and  Clements,  who  were  the 
sureties  of  the  administratrix,  on  the  ground,  that  the  bond 
which  they  executed,  was,  by  mistake  of  the  clerk,  drawn  in 
a  way  so  as  to  be  inoperative,  but  in  equit}'',  they  are  held  lia- 
ble to  the  same  extent  as  they  would  have  been  liable  at  law, 
on  the  bond,  had  it  been  properly  filled  up,  and  the  adminis- 
tratrix, ds  Ijonis  non  cwn  testamento^  of  the  testator,  charges 
the  sureties  of  the  administratrix,  with  a  devastavit,  and  asks 
for  an  account  of  her  administration. 

Admit  under  the  authorit}'^  of  Armstead  v.  £oseman^  1  Ired. 
Eq.  117,  the  liability  of  Pratt  and  Clements  to  the  same  ex- 


332  IN  THE  SUPREME  COURT. 

Herndon  v.  Pratt. 

tent  as  if  the  bond  had  been  properly  filled  up,  the  administra- 
tor de  honi»  non^  of  the  testator,  meets  with  this  difficulty:  In 
1836,  Robert  Dickson,  one  of  the  executors,  attained  his  age 
of  twenty-one,  and  qualified.  This  cause  of  action  in  equity, 
to  hold  the  sureties  of  the  administratrix,  to  an  account  for 
any  devastavits  during  his  minority,  then  accrued  to  him. — 
He  lived  until  1853,  seventeen  years,  during  all  of  which  time 
it  was  his  duty,  and  interest  to  assert  this  equity.  Pratt  and 
Clements  were  aware  of  their  liabilities,  as  is  proven  by  the 
fact  of  the  deed  of  trust,  which  they  took  for  their  indemnity 
and  yet  they  permit  the  slaves  included  in  the  trust,  to  be 
otherwise  disposed  of.  These  facts  taken  in  connection  with 
the  article  of  agreement,  executed  between  Merritt  and  his 
wife,  and  Robert  Dickson,  the  executor  and  trustee,  of  Joseph 
Dickson,  seem  sufficient  to  prove,  as  an  open  matter  of  fact, 
that  the  cause  of  action  or  equity  of  the  executor,  against  the 
administratrix,  cum.  tes.  durante  miiioritate,,  was  satisfied.  But 
suppose  the  proof  should  fall  short,  as  an  open  question  of  fact, 
a  presumption  is  raised  by  the  statute  law,  after  the  lapse  of 
ten  years,  that  this  equity,  or  cause  of  action  in  equity,  has 
been  satisfied,  released  or  abandoned. 

The  reply  made  on  the  part  of  the  plaintifis,  is  not  tenable, 
either  as  a  matter  of  law,  or  by  the  proofs  on  the  question  of 
fact.  The  testator  appointed  Robert  Dickson  one  of  his  exe- 
cutors; on  arriving  at  age,  he  was  entitled;  and  did  qualify, 
as  executor  of  his  grandfather's  will.  There  was  no  ground 
on  which  the  county  court  could  have  refused  to  permit  him 
to  qualify.  lie  was  a  drunken,  trifling  young  man,  but  there 
is  no  proof  tending  to  show  that  he  was  an  idiot ;  in  fact  there 
is  no  allegation  to  that  efi'ect,  in  the  bill;  and  his  being  a. 
weak-minded,  imbicile  young  man,  addicted  to  drink,  did  not 
authorise  the  county  court  to  refuse  to  permit  hira  to  qualify, 
or  at  all  events,  does  not  authorise  this  Court  to  treat  his  ap- 
pointment as  a  nullity^  and  on  that  ground,  to  grant  relief,  as 
if  the  estate  of  Joseph  Dickson,  had  been  without  a  represen- 
tative, or  person. capable  of  suing  in  its  behalf,  from  1836  up 
to  the  death  of  Robert  Dickson,  in  1853. 


JUNE  TEP.M,  1802.'  333 

Herndon  v.  Pratt. 

2iul.  The  two  negoes  sold  b}'  the  execntor,  Kobert  Dickson 
to  the  defendant,  Pnitt : 

The  eqnitv  is  pnt  npon  tlie  ground  of  following-  the  trust 
fund  in  the  liands  of  a  purchaser  with  notice.  Admit  the 
equity,  and  waive  any  reference  to  the  difference  between  a 
sale  by  an  executor,  and  a  sale  by  a  trustee,  it  basso  happen- 
ed that  in  point  of  fact,  this  part  of  the  trtistfund,  has  become 
extinct  by  the  act  of  God,  both  of  the  negroes* liaving  died  in 
the  life  time  of  Kobert  Dickson.  So  the  contingent  limitation 
over,  did  not  vest  at  his  death,  because  tbe  subject-matter  of 
the  bequest  was  not,  at  that  time,  in  esse.  So  tliis  equity  must 
fail  ;  there  being  no  allegation  or  proof  that  the  death  of  these 
slaves,  was  caused,  or  in  any  way  hastened  by  the  fact  of  their 
having  been  sold,  and  put  into  the  possession  of  Pratt,  by  the 
executor.  On  the  contrary,  the  proof  is,  that  Pratt  treated 
them  as  his  own  property,  and  took  very  good  care  of  them. 
The  claim  of  the  plaintiffs  to  the  profits  and  hires  of  the  two 
negroes  sold  to  Pratt,  accrued  while  the  negroes  lived,  cannot 
be  supported.  The  negroes  belonged  to  Robert  Dickson,  ab- 
solutely, subject  to  a  limitation  over,  after  his  death,  to  the 
plaintiffs;  so  Pratt  had  a  good  title  during  the  life  of  Robert 
Dickson,  and  consequently,  was  entitled  to  the  profits  and 
hires  accruing  before  his  title  was  defeated  by  the  happening 
of  the  contingency  on  which  the  negroes  were  limited  over ; 
which  limitation  over  as  we  have  seen,  was  prevented  by  the 
deaths  of  the  negroes,  before  the  happening  of  the  contingen- 
cy, and  so  the  limitation  over  failed  to  take  effect  by  the  ex- 
tinction of  the  subject  of  the  bequest. 

3.  The  negroes  sold  under  an  execution  against  Merritt  and 
purchased  b}''  Hays  and  George  : 

This  sale  was  made  in  1836,  since  which  time.  Hays  and 
George  have  been  in  the  adverse  possession  of  the  negroes 
purchased  b}^  them  respectively.  Under  the  statute  of  limi- 
tations, this  adverse  possession  gave  them  the  title,  not  onl^' 
against  Robert  Dickson,  but,  also,  against  the  persons  entitled 
to  the  limitation  over,  for  whom  he  held  the  title  as  trustee. 
The  princi])le,  that  when  the  statute  of  limitatiops  is  a  bar  to 

0 


334  IN  THE  SUPREME  COURT. 

Herndon  v.  Pratt. 

the  trustee,  it  is  also  a  bar  to  the  cestui  qui  trust  tor  whom  he 
holds  the  title,  and  whose  right  it  is  his  dnt}-  to  protect,  is 
settled ;  Wellhorn  v.  Finley,  7  Jones,  228.  In  delivering 
the  opinion  in  that  case,  the  principle  was  considered  so  plain 
that  it  was  deemed  unnecessarj'  to  cite  anthorities,  and  the 
Conrt  was  content  to  leave  the  question  on  the  manifest  7'ea- 
son  of  the  thing.  For  statutes  of  limitation  and  statutes  giv- 
ing title  by  adverse  possession,  would  be  of  little  or  no  effect, 
if  their  operation  did  not  extend  to  cestuis  qui  trust  as  well 
as  trustees  who  hold  the  title  for  tiiem,  and  whose  duty  it  is 
to  protect  their  rights.  If  by  reason  of  neglect  on  the  part  of 
the  trustees,  cestuis  qui  trust  lose  the  trust  fund,  their  remedy 
is  against  the  trustees,  and  if  they  are  irresponsible,  it  is  the 
misfortune  of  the  cestuis  qui  trusty  growing  out  of  the  want  of 
forethought  on  the  part  of  the  maker  of  the  trust,  under  whom 
they  claim.  The  question,  liowever,  having  been  discussed 
at  the  bar,  we  will  now  refer  to  Lewin  on  Trusts,  24  Law  Lib. 
306,  and  the  cases  there  cited,  which  will  warrant  the  con- 
clusion that  the  doctrine  is  settled. 

On  the  whole,  we  have  arrived  at  the  conclusion,  that  the 
persons  entitled  under  the  limitation  over,  have  no  remedy, 
except  against  the  executor  and  trustee,  Robert  Dickson,  who 
is  dead — insolvent,  and  against  whose  representative  no  re- 
lief is  prayed,  and  they  must  ascribe  their  disappointment,  in 
losing  the  benefit  which  they  expected  to  have  realised,  un- 
der the  limitation,  to  the  fact,  that  the  two  respectable  and 
competent  gentlemen,  who  were  named  by  the  testator  as  ex- 
ecutors and  trustees,  in  connection  with  his  grandson,  Robert 
Dikson,  refused  to  qualify  as  executors  or  act  as  trustees,  in 
consequence  of  which,  Robert  Dickson,  on  arriving  at  age, 
became  the  only  executor  and  trustee  and  proved  to  be  in- 
competent and  faithless. 

The  allegation  of  fraud  and  collusion  on  the  part  of  Hays 
;and  George,  with  the  executor  and  trustee,  Robert  Dickson, 
•which  is  made  in  order  to  prevent  the  application  of  that  stat- 
ute, in  respect  to  the  plaintiffs'  claiming  as  cestuis  qui  trust 
iimder  the  limitation  over,  is  not  supported  by  the  proofs. 

Per  Curiam,  Bill  dismissed  with  costs. 


JUNE  TEEM,  18(52.  335 


Rhyne  v.  Hoffman. 


COTESWORTH  H.    RHYNE   and  another  against  JONAS   HOFFMAN 
Administrator  and  others. 

A  child  is,  in  law,  legilimate,  if  boni  within  matrimony,  though  born  a  week 
or  a  day  after  marriage. 

A  child  begotten  while  the  parties  were  man  and  wife,  but  not  born  until  six 
months  after  the  husband  had  obtained  a  divorce  from  the  bonds  of  mat- 
rimony on  account  of  the  wife's  adultery,  will  be  taivon  to  be  legitimate, 
unless  it  be  proved,  by  irresistable  evidence,  that  the  husband  was  impo- 
tent or  did  not  have  sexual  intercourse  with  his  wife. 

Cause  removed  from  the  Coui-t  of  Equity  of  Gaston  comity. 

About  Fcbriuiry,  1834,  the  defendants'  intestate,  Simon 
Rhyne,  married  a  woman,  by  the  name  of  Nancy  Lay,  and 
about  si.x  months  after  this  marriage,  she  liad  a  child,  the  pre- 
sent pUiintiff,  Coteswortli  II.  Rliyne.  After  the  marriage,  she 
went  home  with  her  husband  and  remained  with  him  for 
about  three  months,  when  he  drove  her  ofi'  and  she  returned 
to  her  former  phice  of  abode,  about  a  mile  distant  from  the 
home  of  her  husband.  The  said  Simon  filed  a  petition  for  a 
divorce  in  the  Superior  Court  of  Lincoln,  at  the  Spring  Term, 
1835.  At  Spring  Term,  1836,  of  that  court,  he  obtained 
a  decree  for  a  divorce  tVom  the  bonds  of  matrimony,  (on 
account  of  adultery)  but  in  less  than  niue  months  after 
this  decree,  the  said  Nancy  was  delivered  of  another  child, 
the  plaintiff,  Isaac  T.  Rhyne.  The  mother,  during  all  this 
time,  lived  within  a  mile  of  tiie  said  Simon  Rhyne,  but  under 
the  influence  and  conti'ol  of  one  Elisha  Jones,  to  whom  she 
had  prostituted  hei'self  before  her  marriage  with  Mr.  Rhjaie. 
The  evidence  of  Elisha  Jones,  testifying,  to  his  opinion  that 
the  plaintiffs  were  his  riiildren,  also  the  declarations  of  the 
mother,  to  the  effect,  that  the  plaintiffs  were  not  the  children 
of  Simon  Rhyne,  were  filed  in  the  case,  subject  to  exceptions. 
The  cause  was  set  down  for  heai-ing  on  the  bill,  answers,  ex- 
hibits and  proofs,  and  sent  to  this  Court. 

I^owle,  for  the  plaintiff'. 

No  counsel  for  the  defendant  appeared  in  this  Court. 

Battle,  J.  The  right  of  the  plaintifis  to  distributive  shares 
in  the  estate  of  the  intestate  of  the  defendant,  Jonas  Hoffman, 
depeuds  upon .  their  legitimacy.     The  (|uestion  in  relation  tc 


336  IN  THE  SUPREME  COURT. 


Rhyne  v.   Hoffman. 


tlie  plaintitT,  Ooteswortli  H.  Rhyne,  has  been  long  settled. 
In  2  Com.  Dig.  117,  it  is  stated  that  a  child  is  legitimate  if 
born  within  matiiiiKiny,  though  born  within  a  week  or  a  day 
after  the  marriage.  So,  if  tiie  woman  be  big  with  child  by 
A,  and  marry  B,  and  then  the  child  is  born,  it  is  the  legiti- 
mate child  of  B;  1  Roll's  Abr.  358;  2  Bac.  Abr.  Si.  It  is 
admitted  in  the  pleadings,  that  this  plaintiff  was  born  within 
five  or  six  months  after  the  marriage  of  his  mother  with  the 
intestate,  which  brings  him  within  the  rule  established  by 
these  authorities.  ' 

The  claim  of  the  other  plaintiff  stands  upon  a  principle 
somewhat  different.  He  was  begotten  while  the  parties  were 
man  and  wife,  but  was  not  born  until  six  months  after  the 
husband  had  obtained  a  divorce  a  mnoulo  matrimonii  on  ac- 
count of  adultery.  Duruig  the  time,  when  the  child  was  be- 
gotten, the  husband  and  wife  lived  separately,  but  in  the 
same  neighborhood,  near  enough  for  the  husband  to  visit  her, 
and  it  is  proved  that,  occasionally,  he  did  go  to  the  house 
where  she  was  staying.  There  was,  then,  an  opportunity  for 
sexual  intercourse  between  the  parties,  and  from  that  the  law 
presumes  that,  in  fact,  there  was  sexual  intercourse  between 
them.  This  plaintiff  "must,  therefore,  be  taken  to  be  legiti- 
mate, unless  it  be  proven,  by  irresistible  evidence,  that  the 
husband  was  impotent  or  did  not  have  any  sexual  intercourse 
with  his  wife  ;  but  the  former  is  not  pretended,  and  the  latter 
is  a  fact,  which  neither  the  wife,  nor  the  declarations  of  the 
wife,  is  admissible  to  prove  ;  Hex  v.  Luffe.,  S  East,  193. — 
Here,  independent  of  the  declarationsof  the  wife,  which  must 
be  rejected  as  incompetent,  there  is  no  testimony  sufficient  to 
rebut  the  presumption  of  access. 

Such  being  the  case,  the  proof  that  the  plaintiff's  mother 
lived  in  adultery  with  a  man,  who  testified  that  he  was  the 
father  of  her  children,  makes  no  difference.  As  was  said  in 
the  case  of  Morris  v.  Davies,  14  Eng.  C.  L.  Rep.  275,  "  it 
matters  not  that  the  general  camp,  pioneers  and  ail,  had  tast- 
ed her  sweet  body,  because  the  law  fixes  the  child  to  be  the 
child  of  the  husband." 

It  must  be  declared  that  the  plaintifls  arc  the  legitimate 
children  of  Simon  Rhyne,  deceased,  and  as  such,  are  entitled 
to  distributive  shares  of  his  estate. 

Pek  Curiam,  Decree  accordingly. 


JUNE  TEEM,  1862.  337 


Fu  trill  V.  Futrill. 


ELIJAH  FUTRILL  against  LITTLEBERRY  FUTRILL. 
Where  one,  having  considerable  influence  over  an  old  man,  feeble  in  body  and 
mind  from  a  long  course  of  intemperance,  procured  from  the  latter  a  deed 
for  his  land  when  he  was  without  counsel,  and  in  no  condition  to  under- 
stand it,  wherein  was  recited  a  largo  debt,  which  had  no  existence,  and 
about  which  the  grantee  answered  vaguely  and  evasively,  it  was  held  that 
although  no  confidential  relation  was  proved  then  to  exist  between  the 
parties,  yet,  that  such  deed,  on  the  score  of  fraud  and  imposition,  should  be 
held  only  as  a  security  for  sums  actually  due. 

Cause  transmitted  from  the  Court  of  Equity  of  Northampton. 
This  cause  was  heard  in  this  Court  at  December  Term,  1859, 
on  a  motion  to  dissolve  the  injunction,  and  is  reported  in  5th 
Jones'  Eq.  61.  The  main  facts  of  the  case  are  therein  set  forth 
as  derived  from  the  bill  and  answer,  and  wherever  these  are 
modified  by  the  proofs  on  iile,  it  is  clearly  noted  in  the  opin- 
ion of  the  Court ;  so  that  it  seems  to  the  reporter  unnecessary 
to  re-state  the  case  in  this  connection. 

Batchelor  and  Conigland,  for  the  plaintiflp. 
Barnes^  for  the  defendant. 

Battle,  J.  This  cause  has  now  come  on  for  a  final  hear- 
ing, and  after  a  full  consideration,  we  have  arrived  at  the 
same  conclusion  with  regard  to  the  judgment  obtained  by  the 
defendant  on  the  bond  mentioned  in  the  pleadings,  which  we 
expressed  when  we  decided  to  sustain  the  injunction,  which 
had  been  obtained  against  that  judgment.  The  decision  was 
made  at  December  Term,  1859,  upon  a  motion,  founded  on 
the  answer  to  the  bill,  for  a  dissolution,  and  is  reported  in  5tli 
Jones'  Eq.  61.  The  judgment  at  law  is  allowed  to  stand  as  a 
security  to  the  defendant  for  whatever  may  be  found,  upon 
taking  an  account  between  the  parties,  to  be  justly  and  fairly 
due  from  the  plaintiff,  as  the  consideration  of  the  bond,  on 
which  the  judgment  was  obtained. 

In  taking  such  account,  howevei*,  the  master  will  not  allow 
the  defendant  a  credit  for  any  article,  or  articles,  sold  to  the 
plaintiff,  unless,  under  the  circumstances,  it  was  proper  and 
necessary  for  the  latter  to  have  it  or  tnem.  As  for  instance, 
the  master  will  be  at  liberty  to  enquire,  whether  the  defendant 


338  m  THE  SUPKEME  COUKT. 

Futrill  V.  Futrill. 

ought  to  have  furnished  tlie  plaintiflf  with  spirituous  liquors 
to  the  value  of  $404.25,  during  nine  months  of  the  year  1859  ; 
and  if  not,  he  will  refuse  a  credit  for  whatever  he  may  find  to 
have  been  an  excessive  quantity  of  that  article. 

Having  disposed  of  the  question,  raised  with  respect  to  the 
judgment  on  the  bond,  we  come  now  to  the  consideration  of 
that  which  relates  to  the  deed  executed  by  the  plaintiif  to  the 
defendant  for  his  land,  and  all  his  other  property,  with  the 
reservation  of  a  life-estate,  founded  upon  the  expressed  con- 
sideration of  $2500,  in  a  debt  due  from  the  former  to  the  lat- 
ter, and  a  covenant  by  the  latter  to  support  the  wife  of  the 
lormer,  should  she  become  his  widow,  and  so  long  as  she- 
should  continue  such.  The  first  enquiry  that  is  presented  in 
this  part  of  the  case  is,  whether  before,  and  at  the  time  when 
the  deed  was  executed,  to  wit,  the  23rd  day  of  March,  1857, 
the  confidential  relation  of  principal  and  agent  existed  be- 
tween the  parties  ? 

From  an  examination  of  the  pleadings  and  proofs,  we  are 
satisfied  that  it  did  not.  The  bill  alleges  that  the  relation  com- 
menced in  the  early  part  of  the  year  1857,  without  specifying 
the  precise  time,  and  the  answer  admits  the  allegation  in  the 
same  terms.  The  proofs  are  equally  indefinite  as  to  the  time, 
and  from  the  whole,  we  conclude  that  the  defendant  became 
the  general  manager  and  agent  of  the  plaintifip  immediately 
after  the  execution  of  the  deed,  and  no  doubt  in  consequence 
of  it.  It  follows  that  the  force  and  efi'ect,  which  this  Court 
may  give  to  the  deed,  cannot  be  governed  by  the  principle 
which  we  hold  to  be  applicable  to  the  judgment  on  the  bond; 
and  that  if  the  deed  can  be  impeached,  it  must  be  on  the 
ground  of  fraud,  circumvention  or  undue  influence  ;  Deaton 
\. 'Monroe^  4  Jones'  Eq.  39.  The  allegations  of  the  plaintiff, 
with  respect  to  the  execution  of  the  deed,  are,  in  substance, 
that  the  defendant  being  his  kinsman  and  neighbor,  and  pro- 
fessing to  be  his  friend,  had  acquired  great  influence  over 
kim ;  that  he,  the  plaintiff,  by  a  long  and  habitual  course  of 
intemperance,  had  become  very  much  enfeebled,  both  in  body 
and  in  mind,  and  that  the  defendant  availing  himself  of  his 


JUNE  TERM,  1862.  33S 

Futrill  V.  Futrill. 

influence,  procured  from  him  the  execution  of  the  deed  when 
he  was  in  no  condition  to  understand,  and  did  not  under- 
stand its  contents,  and  under  circumstances  which  precluded 
him  from  seeking  and  ohtaining  tlie  counsel  and  advice  of  a 
disinterested  friend.  The  plaintiff,  then,  avers,  expressly, 
that  the  consideration  expressed  of  a  debt  of  $2500,  due  from 
him  to  the  defendant  was  false;  for  that  he  was  then  not  in- 
debted to  him  at  all,  or  at  most,  was  indebted  only  for  a  very 
small  store  account.  He  also  avers  that  the  other  part  of  the 
consideration,  to  wit,  the  maintainance  of  his  wife,  should  she 
become  his  widow,  was  scarcely  appreciable,  for  that  slie  was 
in  very  low  healtli  and  was  not  expected  to  live,  and,  in  fact, 
did  not  live  but  a  few  months.  The  property,  conveyed,  is 
alleged  to  have  been  of  much  greater  value  than  the  amount 
of  the  consideration  set  forth  in  the  deed,  supposing  it  to  have 
been  truly  recited. 

These  allegations  are  expressly  denied  by  the  defendant, 
who  avers  that  the  deed  was  drawn  according  to  the  wishes  of 
the  plaintiff,  who  executed  it  willingly,  and  with  a  full  know- 
ledge of  its  contents,  and  wlio,  though  old  and  intemperate, 
had  sufficient  capacitj'-  to  understand  and  transact  the  busi- 
ness. As  to  the  money  part  of  the  consideration,  the  defend- 
ant states  that  the  plaintiff  was  "justly  indebted  to  him  in  a 
large  amount." 

The  parties  being  thus  at  issue,  with  respect  to  the  mental 
imbecility  of  the  plaintiff',  and  the  exercise  of  undue  influence 
over  him  by  the  defendant,  as  well  as  to  the  consideration, 
mentioned  in  the  deed,  we  have  examined  the  proofs  on  file, 
which  relate  to  those  subjects.  We  shall  not  attempt  to  state, 
in  detail,  the  result  of  our  examination,  but  shall  merely  say 
that  we  are  satisfied,  that  at  the  time  when  the  deed  bears 
date,  and  for  some  months  before,  the  plaintiff  liad  capacity 
sufficient  to  enable  him  to  understand  and  to  transact  ordina- 
ry business,  but  he  was  old  and  in  feeble  health,  and  his  mind 
had  been  so  much  weakened  by  long  continued  and  habitual 
intemperance,  that  he  could  be  easily  influenced  to  do  any 
thing  which  a  person,  in   whom  he  had  confidence,  desired ; 


340  m  THE  SUPREME  COURT. 


Futrill  V.  Futrill. 


that  the  defendant  was  his  kinsman  and  neighbor,  had  been 
kind  to  him,  and  had  acquired  great  influence  over  him,  and 
that  he,  through  the  means  of  that  iiiiluence,  undnl}''  exercis- 
ed, procured  the  execution  of  the  deed  in  question.  Among 
the  circumstances  of  suspicion  against  the  defendant  is,  that 
of  the  recital  of  the  pecuniary  consideration  of  $2500,  in  a 
debt  due  from  the  plaintiff  to  him,  which  he  does  not  attempt 
to  explain  in  his  answer,  and  of  the  existence  of  which,  lie 
furnishes  us  no  evidence.  To  the  positive  allegation  of  the 
plaintiff,  that  he  at  that  time  owed  him  nothing  at  all,  or  if 
any  thing,  only  a  very  small  store  account,  the  defendant 
merely  answers  that  the  plaintiff  was  "justly  indebted  to  him 
in  a  large  amount,"  without  explaining  how  the  indebtedness 
arose,  or  how  it  was  evidenced,  whether  by. bond,  note  or  open 
account;  and  among  all  his  proofs,  we  do  not  find  any  evi- 
dence of  it.  The  vagueness  of  the  answer  as  to  tlie  amount, 
and  the  absence  of  any  explanation  as  to  how  it  arose,  prevent 
us  from  coming  to  any  other  conclusion  than  that  tiiere  was 
either  no  indebtedness  at  all,  or  a  debt  of  a  very  trifling  sum. 
We  are  not  to  be  understood  as  holding  that  a  consideration 
was  necessary  to  sustain  the  deed,  as  between  the  parties,  liad 
the  conveyance  been  fairly  obtained.  The  plaintiff"  was,  we 
think,  capable  of  executing  a  conveyance  of  his  property, 
and  if,  without  any  fraud,  circumvention  or  undue  influence, 
])racticed  upon,  or  exercised  over  him,  he  had  made  a  volun- 
tary deed  in  favor  of  the  defendant,  we  should  have  upheld 
it,  and  in  doing  so,  we  should  have  been  sustained  by  the  au- 
thority of  adjudications,  both  in  England  and  in  this  State; 
Hunter  v,  AtMns,  3  Myl.  and  Keen  113;  Taylor  v.  Taylor^ 
6  Ire.  Eq.  26.  But  when  we  find  that  the  defendant  resorted 
to  the  expedient  of  pretending  a  debt,  which  had  no  exist- 
ence, for  the  purpose  of  obtaining  a  conveyance  of  all  the 
plaintiff's  property,  subject  to  his  life-estate  therein,  we  are 
not  at  liberty  to  give  it  au}^  greater  effect  than  to  permit  it  to 
stand  as  a  security  for  any  sum  which  may  have  been  really 
due  to  him  from  the  plaintiff.  There  must  be  a  decree  for  an 
account  between  the  parties  upon  the  principles  herein  ex- 
pressed. 

Per  Cukiam,  Account  ordered, 


CASES  IN  EQUITY, 

ARGUED  AND  DETERMINED 

IN   THE 

SUPREME  COURT  OF  NORTH  CAROLINA, 
AT  RALEIGH. 


JUNE  TERM,  1863. 


W.  H.  PARTIN  and  another  against  T.  S.  LUTERLOH  and  others 

That  a  note  had  been  obtained  by  fraud  in  the  factum,  is  a  good  defense  at 
law,  and  cannot  afterwards  be  brought  forward  for  the  pHrposes  of  an  in- 
junction. 

It  is  no  ground  for  a  bill  for  an  injunction,  that  the  complainant  was  not  a 
party  to  the  suit  at  law,  because  that  process  had  not  been  served  on  him. 
His  proper  remedy  is  to  have  the  judgment  set  aside,  on  motion,  in  the 
Court  granting  it 

Cause  transmitted  from  the  Court  of  Equity  of  Cumberland 
county. 

This  was  a  bill  for  an  injunction,  filed  in  the  names  of  Wil- 
liam IL  Partin  and  Norman  G.  McLeod  against  T.  S.  Luter- 
oh,  Charles  Luterloh,  W.  II.  Lambert  and  Thomas  Lambert. 

1 


34:2  LN"  THE  SUPEEME  COUKT. 

Partin  v.  Luterloh. 

The  object  of  the  bill  is  to  restrain  tlie  collection  of  a  judg- 
ment and  execution,  which  was  obtained  in  the  County  Court 
of  Cumberland,  on  a  note  for  $416.52,  dated  June  16th,  1852, 
payable  to  T.  Luterloh  &  Co.,  and  endorsed  to  Charles  Lut- 
erloh. Signed  by  W.  H.  &  T.  Lambert,  and  W.  H.  Partin, 
and  :N".  G.  McLeod. 

W.  II.  Partin  was  engaged  in  the  business  of  getting  tur- 
pentine in  the  count^'^  of  Johnson,  where  W.  H.  and  Thomas 
Lambert  were  engaged  in  the  same  business  as  partners,  and 
where  the  two  latter  resided.  The  bill  alleges  in  behalf  of 
Partin,  that  he  had  consigned  spirits  of  turpentine  to  T.  S. 
Luterloh,  who  owed  him  a  balance  on  that  account,  and  that 
Thomas  Lambert  being  about  to  visit  Fayetteville,  where 
Luterloh  resided,  he  requested  him  to  settle  with  Luterloh, 
and  bring  him  the  money  that  was  due  him,  and  to  enable 
him  to  do  so,  he  signed  his  name  on  a  blank  piece  of  paper, 
in  order  that  it  might  be  filled  up  as  a  receipt  for  the  money 
when  it  might  be  paid  ;  that  Thomas  Lambert  pretending  that 
Partin  wished  to  get  money  to  the  amount  of  $200,  from  a 
bank  in  Fayetteville,  applied  to  the  plaintit}*,  ]^.  G.  McLeod, 
to  join  in  the  note  with  Partin  and  the  firm  to  which  he 
belonged,  and  as  an  inducement  for  McLeod  to  sign  the  note, 
he  offered  to  draw  it  for  four  hundred  dollars,  and  out  of  the 
proceeds  to  pay  a  debt  of  $125,  which  Lambert's  father  owed 
McLeod,  and  with  the  understanding  that  the  nore  was  to  be 
thus  filled  up  and  offered  for  discount  at  a  bank;  he  also  sign- 
ed it  in  blank.  The  bill  then  states  that  McLeod  proceeded 
with  Thomas  Lambert  to  Fayetteville,  and  the  blank  paper 
then  having  the  names  of  W.  II.  and  T.  Lambert  on  it,  was 
handed  to  T.  S.  Luterloii,  who  had  ])roinised  to  assist  them  in 
getting  the  paper  discounted,  and  he  depai'ted  for  the  purpose 
of  going  to  tiie  Bank  on  the  business  ;  thar  in  a  short  time  he 
retiwned  and  announced  that  lie  had  failed  in  piocuring  tiie 
discount,  on  wliich,  McLeod,  in  tlie  pfesehce  of  T.  S.  Luter- 
loh, asked  for  the  paper  that  had  his  name  on  it ;  to  whicli 
T.  Lambert  said,  it  did  not  matter,  as  the  paper  was, still  in 
blank  and  could  not   hurt  him  ;  that    he    ihen   instructed   T. 


JUNE  TERM,  1863,  348 


Partin  v.  Luterloh. 


Lambert  to  erase  his  name  from  the  paper  ;  that  without  the 
consent  of  either  Partin  or  McLeod,the  note,  in  question,  was 
tilled  wp,  payable  to  T.  S.  Luterloh.  Partin  further  says,  that 
he  was  not  served  with  tiie  writ  in  the  suit,  at  law,  and  hatl 
no  knowledge  of  its  pendency  against  him,  or  of  the  existence 
of  the  judgment  until  after  its  rendition.  It  is  further  alleg- 
ed, that  the  endorsement  was  made  to  Charles  Luterloh  M'ith- 
■ont  consideration,  but,  to  give  jurisdiction  to  the  county 
court  of  Cumberland.  The  prayer  is  for  an  injunction.  T.  S. 
Luterloh  denies,  in  his  answer,  that  he  owed  Partin  any  thing, 
or  that  there  was  any  open  account  between  him  and  this  de- 
fendant, or  the  firm  ;  he  admits  that  there  Iiad  been  some 
dealings,  but  says  that  these  had  been  closed  before  the 
transaction  in  question.  lie  states,  that  the  true  history  of 
the  transaction  is  this:  Tliomas  Lambert  and  plaintiff,  N.  G. 
McLeod,  came  to  Fayctteville,  and  asked  his  assistance  to 
have  a  note  discounted  in  a  bank  at  that  place,  and  they  pro- 
duced to  him  a  paper,  subscribed  in  blank  by  W.  H.  and  T. 
Lambert,  W,  II.  Partin  and  N.  G.  McLeod.  It  was  stated  by 
them,  that  tiiey  wished  to  get  $1000  from  the  bank,  and  out 
of  that  sum,  a  debt,  which  the  firm  of  W.  H  &  T.  Lambert 
owed  his  firm,  should  be  paid  ;  that  he  endeavored  to  procure 
the  bank  accommodation,  but  found  it  could  not  be  obtained, 
and  so  informed  the  otlier  party — thereupon,  it  was  agreed 
by  Thomas  Lambert  and  jST.  G.  McLeod,  tiiat  the  blank  paper 
should  be  filled  up  for  the  debt  due  his  firm,  and  this  was 
done  accordingly.  Charles  Luterloii  answers,  that  the  note 
was  endorsed  to  him  ho7ia  fide  for  a  debt  due  him  b}'  T.  G. 
Luterloh  c"fe  Co. 

Graham^  foi*  the  plaintiffs. 
Gorr'/l,  for  the  defendants. 

Battlk,  J.  We  are  unable  to  discover  any  equity  in  the 
transactions  disclosed  by  the  pleadings  and  ]>roof,  tiiat  enti- 
tles the  plaintiffs  to  the  injunctive  relief  which  they  seek. 
The  allegation,   that   the   plaintiff  at  law,  Charles   Luterloh, 


344:  IN  THE  SUPEEME  COUKT. 

Partia  v.  Luterloh. 

took  the  endorsement  of  the  note,  in  question,  without  consid- 
eration, and  merely  for  the  purpose  of  giving  jurisdiction  to 
the  court  of  pleas  and  quarter  sessions  for  Cumberland  coun- 
ty,^ is  positively  denied  in  his  answer,  and,  on  the  contrary,  he 
avers  that  he  took  it  hona  fide  and  for  a  valuable  considera- 
tion. His  right  to  recover  on  it,  at  law,  is  fully  sustained  by 
the  recent  case  of  Mo  Arthur  v.  McLeod,,  6  Jones,  476. 

The  authority  of  Thomas  Lambert  to  bind  his  partner  by 
signing  the  note  in  the  name  of  the  firm,  for  a  debt  of  the 
firm,  is  unquestionable.  The  pai'tners  would  be  bound  in 
such  a  case,  even  though  the  particular  note  was  signed  by 
one  partner  without  the  consent  and  against  the  wishes  of  the 
other;  Wharton  \.  Woodbitrn^  4:Dev.  and  Bat.  507;  Dick- 
son V,  Alexander,  7  Ired.  4. 

Had  the  note  been  obtained  by  fraud  in  the  factum,  that 
would  have  been  a  good  defense,  at  law,  and  could  not  after* 
wards  be  brought  forward  for  the  purposes  of  an  injunction 
in  equity  ;  Tysor  v.  Luterloh,  4  Jones'  Eq.  247. 

The  objection  to  the  validity  of  the  judgment,  as  to  Partin, 
urged  by  him,  on  the  ground,  that  he  was  not  a  party  to  the 
suit  at  law,  because  no  process  had  been  served  on  him,  is 
very  clearly  one  to  be  used  at  law,  and  cannot  be  made  avail- 
able in  equity.  The  proper  course  to  be  pursued  in  such 
case,  is  to  apply  to  the  court  in  which  the  judgment  was  ren- 
dered, for  the  purpose  of  having  it  set  aside  on  motion.  When- 
ever that,  or  any  other  complete  remedy  can  be  given  at  law, 
a  court  of  equity  will  not  interfere  ;  Parker  v.  Jones,  5  Jones' 
Eq.  276,  The  injunction  must  be  dissolved  and  the  bill  dis- 
missed. 

Per  Curiam,  Bill  dismissed. 


JUNE  TEJRM^  1863.  845 


Malloy  V.  Mallett. 


NEILL  M ALLOT  against  CHARLES  B.  MALLETT  and  others. 

Upon  d»e  dissolution  of  a  coiporation  by  the  expiration  of  the  time  for  which 
it  was  chartered,  its  debts  become  extinct. 

Under  a  provision  in  an  act  of  incorporation,  "that  the  private  property  of 
the  hidividual  stockholders  shall  be  liable  for  the  debts,  contracts  and  lia- 
bjlitios  of  the  corporation,"  it  was  held  that  the  responsibility  on  the  indi- 
indiial  stockholders  is  a  secondary  one,  and  that  when  the  debts  against  the 
corporation  became  extinct  by  the  expiration  of  its  charter,  the  liability  of 
the  individual  stockholders  became  extinct  also. 

(The  cases  o(  Fox  v.  Ilorah,  I  Ired.  Eq.  358,  and  Wititry  v.  Webb,  3  Dev.  27, 
oited  and  approved.) 

Cause  sent  froua  the  Court  <5f  Equity  of  Cumberland  county. 
All  the  facts  necessary  to  the   understanding  of  this   cause 
are  stated  in  the  opinion  of  the  Court. 

Buxton,  for  the  plaintiff. 

€.  G.    WrigJd  and  Bryan,  for  the  defendants. 

Battle,  J.     Several  interesting  questions  are  presented  by 
the  pleadings,  and  have  been  discussed  in  the  argument,  but 
sn  the  view  which  we  feel  constrained  to  take  of  the  case,  it  is 
only  nccessai-y  thr  us  to  notice  one  of  them.     The   bill  was 
filed  after  tlie  expiration  of  the  charter  of  the  company  for 
whose  debts,  private  property  of  the  defendants,  as  individu- 
al stockholders,  is  sought  to  be   made   liable.     It  is  a  well 
settled  principle  of  the  common  law,  that  upon  the  dissolution 
of  a  corporation,  its   debts  become  extinct.     This   principle 
was  held,  in  the  case  oi  Fox  v.  Ilorah,  1  Ired.  Eq.  358,  to  be 
Jn  fuH  force  in  this  State.     Hence,  when  the  "  Phenix  Com- 
pany" expired  by  the  limitation  of  its  charter  on  the  Ist  day 
of  January,  1860,  it  ceased  to  owe  any  debts,  because  it  no 
longer  had  any  existence  by  which  it  could  be  a  debtor.    The 
question,  then,  is,  could  the  private  property  of  the  persons, 
who  were  tlie  individual  stockholders  of  the  company  at  the 
time  of  its  dissolution,  be  made  liable  under  the  10th  section 
of  the  act  of  incorporation,  for  such  of  its  debts  as  were  then 


34:6  m  THE  SUPREME  COUET. 

Malloy  V.  Mallett. 

unpaid  ?  The  j3roper  answer  to  this  qnestion  depends  upon 
another  enquii'j  ;  tliat  is,  whether  tlie  responsibility  imposed 
by  the  act  upon  the  individual  stockholders,  is  a  primary  or 
only  a  secondary  liability.  Tiie  language  of  the  charter,  af- 
ter creating  the  corporation,  with  the  usual  powers  and  privi- 
leges, for  the  purpose  of  manufacturing  wool  and  cotton  goods, 
and  after  presci'ibing  various  I'egnlations  ordinarily  found  in 
charters  of  the  like  kind,  declai'es,  in  the  10th  section,  "  that 
the  private  property  of  the  individual  stockholders  shall  be 
liable  for  all  the  debts,  contracts  and  liabilities  of  the  corpor- 
ation in  proportion  to  the  stock  subscribed  l>y  each  individu- 
al-." The  responsibility  thus  imposed  upon  the  individual 
stockholdei'S  is,  we  think,  manifestly  a  secondary  one  ;  be- 
because  it  makes  them  liable  for  the  debts  of  another  person, 
to  wit :  the  corporation.  Such  a  liability  was  amply  suffi- 
cient for  the  secui'ity  of  the  creditors  of  the  company,  should 
they  be  diligent  in  enforcing  it,  during  the  existence  of  the 
corporation,  while,  to  have  made  it  greater,  would,  in  a  con- 
siderable degree,  liave  tended  to  defeat  the  purposes  for  which 
the  company  was  created.  The  liability  of  the  individual 
stockholders  being  thus  a  secondary  one  for  the  debts  of  the 
company,  it  follows  that  when  the  corpoi-atiou  eMj>ired  and  its 
debts  became  thereby  extinct,  their  liability  became  extinct 
also.  As  long  as  there  were  debis  of  the  company  to  be  paid, 
the  stockholdei'S  were  bound  to  pay  them,  if  necessary,  out  of 
theii"  private  means;  but  when  the  debts  of  the  corpoi'atioa 
ceased  to  exist,  as  such,  there  remained  nothing  upon  which 
to  attach  a  responsibility  on  those  who  had  been  members  of 
the  defunct  company. 

This  view  of  the  subject  is  sustained,  as  we  think,  b}'  tlie 
analogy  which  it  bears  to  the  remedy,  which  is  given  by  the 
act  of  1806,  (Rev:  Code,  chap.  50,  sec.  7,)  to  creditors  against 
the  persons  to  whom  debtors  have  made  a  fraudulent  convey- 
ance of  their  property.  The  remedy  given  is  a  scire  facias 
upon  the  judgment  obtained  by  the  creditor  against  his  debt- 
or, against  the  person  to  whom  the  property  of  the  debtor  has 
been  fraudently  conveyed  for  the  purpose   of  defeating   the 


JUNE  TERM,  1863.  347 

Sims  V.  Smith. 

debt.  In  the  ease  of  Wintry  v,  Webh^^  Dev^.  Rep.  27,  it  was 
decided  that  the  proceeding  depended  upon  the  original  ac- 
tion of  the  creditor,  and  to  sustain  it.  the  judgment  in  that  ac- 
tion must  be  in  force.  Hence,  when  it  appeared  in  the  case, 
that  the  defendant  in  the  judgment  in  the  original  suit,  was 
dead,  and  no  person  had  administered  upon  his  estate,  it  was 
held  that  tiie  scire  facias  against  the  alleged  iVaudulent  gran- 
tee, could  not  be  sustained.  In  that  case,  the  secondary  pro- 
ceeding depended  upon  the  existence  of  a  valid  judgment,  in 
the  first,  while  in  the  case,  now  before  us,  the  proceeding 
against  the  individual  stockholders,  depends  upon  the  exist- 
ence of  a  debt  of  a  corporation,  of  wliich  they  are  members. 
The  dormancy  of  the  judgment  in  the  one  case,  and  the  ex- 
tinction of  tlie  debt  in  the  other,  alike  deprive  the  creditor  of 
his  remedy.  The  demurrer  must  be  sustained,  and  the  bill 
dismissed. 

Pkr  Cukiam,  Bill  dismissed. 


BENJAMIN  Y.  SIMS,  AdmW.,  against  BENJAMIN  SMITH  and  others. 

The  word  '*  when,"'  )ike  the  words  "at"  and  "if"  applied  to  a  legacy  of  per- 
sonalty, makes  the  gift  contingent ;  but  the  snperaddition  of  the  words, 
"equally  to  be  divided,"  (when  there  are  several  legatees,)  shows  that  the 
the  words,  lohen,  Sec,  were  only  nsed  to  designate  the  time  when  the  en- 
joyment of  the  legacy  was  to  commence,  and  would  not  prevent  it  from 
vesting. 

Causk  removed  from  the  Court  of  Equity  of  Franklin  county. 
The  bill  was  filed  by  the  plaintifl-',  Sims,  as  administrator  of 
his  late  wife,  Sally  Ann  (formerly)  Smith,  for  partition  of 
slaves  bequeathed  to  her,  with  tlie  other  defendants,  by  the 
will  of  Joseph  Smith,  and  the  only  question  in  the  cause  de- 
pends uporr  the  construction  of  the  following  clauses  in  said 
will :  "I  give  to  my  son,  Joseph  Smith's  children,  now  living. 


348  IN  THE  SUPREME  COURT. 

Sims  V.  Smith. 

that  is,  Benjamin  Smith,  and  Adam  Smith,  the  land  whereon 
I  now  live,  on  the  east  side  of  Mill  creek,  to  be  equally  divi- 
ded between  them  and  their  heirs  forever,"  reserving  a  life- 
estate  therein  to  Joseph  Smith,  their  father.  *  *  *  "  And 
I  also  give  the  following  negroes  to  my  son,  Joseph  K.  M. 
Smith'sfive  children,  nowliving,  viz:  Sally  Ann  Smith,  Martha 
Smith,  Benj.  Smith,  Abner  Smith  and  Jos.  Moseby  Smith,  when 
the  youngest  arrives  to  lawful  age,  the  following  negroes  and 
their  increase,  Harriet,  &c.,  (twelve  in  number,  naming  them.) 
to  be  equally  divided  between  them  and  their  heirs  forever,  re- 
serving, as  aforesaid,  to  my  son,  Joseph  N.  M.  Smith,  in  the 
laud,  including  the  mill  and  negroes,  during  his  natural  life." 
The  bill  alleges,  that  all  the  above  grandchildren  were  living 
at  the  testator's  death,  and  that  Sally  Ann  Smith  intermarried 
with  the  plaintiff,  and  died  about  seven  years  after  the  death 
of  tlie  testator,  in  the  life-time  of  her  father,  and  before  Jo- 
seph Moseby  Smith,  who  was  the  youngest  child  of  the  testa- 
tor, arrived  at  the  age  of  twenty-one.  The  bill  alleges,  that 
on  the  death  of  Joseph  'N.  M.  Smith,  his  son,  the  defendant, 
Benjamin,  became  his  representative,  and  took  charge  of  the 
slaves,  and  held  them  for  himself  and  the  other  children  of 
Joseph  ]Sr.  M.  Smith,  exclusively  of  the  plaintiff,  as  represen- 
tative of  the  said  Sally  Ann,  his  late  wife,  and  that  he  denied 
the  plaintiff 's  right,  upon  the  ground,  that  Joseph  Moseby 
Smith,  the  youngest,  was  not  of  age  when  said  Sally  Ann 
died.  This  fact  is  admitted  in  the  bill,  but  the  plaintiff  insists 
that  the  legacy  was  vested  on  the  death  of  the  testator,  and 
that  the  age  of  the  youngest  was  fixed  for  division  between 
them,  subject  to  the  life-estate  of  their  father. 

The  prayer  is  for  a  partition  of  the  slaves.  The  defendants 
demurred  to  the  bill,  and  there  being  a  joinder  in  demurrer, 
the  cause  was  set  down  for  argument  and  sent  to  this  Court. 

jB.  jF.  Jloore,  for  the  plaintiff. 

No  counsel,  for  the  defendants.  ^ 

Battle,  J.     The  only  question  presented  for  our  consider- 


JUNE  TERM,  1863.  349 


Sims  V.  Smith. 


ation,  depends  upon  tlie  ])roper  construction  of  the  following 
clause  of  the  will  of  Jopo|)h  M.  Smith  :  "  I  give  the  following 
negroes  to  m.y  son,  Jose))h  N.  M.  Smith's  five  children,  now 
living,  viz  :  Sally  Ann  Smith,  Martha  Smith,  Benjamin  Smith, 
Abner  Smith  and  Joseph  Moseby  Smith,  when  the  youngest 
arrives  to  lawful  age,  the  following  negroes  and  their  increase, 
to  wit:  Harriet,"  &c.,  "  to  be  equally  divided  between  them 
and  their  heirs  forever,  reserving,  as  aforesaid,  to  my  son, 
Joseph  N.  M.  Smith,  in  the  land,  including  the  mill  and  ne- 
groes, during  his  natural  life."  The  testator,  in  a  previous 
clause  of  his  will,  had  given  to  his  two  gi-andsons,  Benjamin 
and  Abner  Smith,  a  tract  of  land,  equally  to  be  divided  be- 
tween them,  reserving  a  life-estate  therein  to  their  father,  Jo- 
seph N.  M.  Smith,  Sally  Ann  Smith,  after  the  death  of  the 
testator,  married,  but  died  before  the  youngest  of  the  five 
children  of  Josejjh  N.  M.Smith  arrived  at  full  age,  and  the 
question  is  presented  on  the  claim  of  her  husband,  as  her  ad- 
tninistrator,  whether  the  legacy  of  the  slaves  is  vested,  or  con- 
tingent. 

It  is  conceded  that  the  word,  "  when,"  like  the  words  "at" 
or  "  if,"  applied  to  a  legacy  of  personalty',  ordinarily,  makes 
the  gift  contingent.  Thus,  if  a  negro  were  given  to  A,  when 
he  arrives  at  age,  with  nothing  to  explain  or  control  the  ex- 
pression, it  would  be  the  same  as  if  the  legacy  were  given  to 
him  "  at"  his  arrival  of  age,  or  "  if"  he  ari-ived  at  age,  and 
should,  consequently,  be  construed  to  be  conditional  upon  his 
arrival  at  age.  But  when  it  appears  from  the  context,  or  from 
the  general  scope  of  the  will,  that  the  testator  intended  to  de- 
signate only  the  time'when  the  enjoyment  of  the  legacy  is  to 
commence,  there  the  legacy  will  be  held  to  be  vested.  Among 
other  expressions,  to  which  this  effect  will  be  given,  is  that  of 
"  equally  to  be  divided  between  them,"  where  there  are  sev- 
eral legatees.  The  law,  it  is  said,  always  leans  in  favor  of 
holding  legacies  vested,  rather  than  contingent,  where  tiie 
clauses,  in  which  they  are  given,  are  ambiguous,  and  the  in- 
tention doubtful;  Stuart  v.  Bruar,  SYhq.  Jun'r.,  529;  /.it- 
well  V,  Bernard^  Ibid.  .622.     In  most  cases,  this  expression 


350  IN  THE  SUPKEME  COUET. 


Long  V.  Clay. 


of  •'  equally  to  be  divided  between  them,"  will  apply,  as  well 
to  the  time  of  enjoyment,  as  to  the  gift  itself,  and  hence,  in  such 
cases,  the  legacy  will  be  taken  to  be  vested.  In  the  case  now 
before  us,  there  is  nothing  to  forbid  the  application  of  this 
rule,  and  the  legacy  of  the  slaves  must  be  considered  as  hav- 
ing vested  at  the  tleath  of  the  testator,  the  division  among  the 
legatees  not  to  take  place  until  the  arrival  of  the  youngest  at 
full  age — the  whole  legacy  having  been  subject  to  the  life  of 
their  father;  see  Guythcr  v.  Taylor,  3  Ired.  Eq.  329. 

Pee  Curiam,  The  demurrer  overruled  and  the  cause 

remanded. 


STANFORD   LONG  against  JOHN  H.  CLAY,  Administrator. 

Where  a  bill  was  filed  for  ihe  settlement  of  co-partnership  dealingSj  and  there 
is  a  prayer  for  an  injunction  against  a  bond  given  on  a  partial  settlement 
of  the  business  between  the  partneis,  but  no  injunction  was  issued,  it  was 
held  that  the  obligor,  in  said  bond,  was  not  in  contempt  of  the  court  of 
equity  in  refasing  to  submit  to  a  judgment  on  the  bond  in  a  court  of  law. 

Appeal  from  an  order  of  the  Court  of  Equity  of  Pei'son, 
JudctE  Osborne  presiding. 

The  facts  of  this  case  are  fully  set  forth  in  the  opinion  of 
the  Court. 

No  council  appeared  for  the  plaintiff  in  this  Court. 
Graham.,  for  the  defendant. 

Battle,  J.  John  IT.  Clay,  administrator  of  William  Long, 
brought  debt  on  a  bond  for  $1292  75,  payable  to  his  intes- 
tate against  Stanford  Long,  as  the  obligor  thereto.  The  suit 
was  brought  in  the  Superior  Court  of  Law  for  Person  county, 
and  defendant  appeared  and  pleaded  payment  and  set  olf. 
AVhile  the  suit  was  pending,  the  defendant  filed  a  bill  in  the 


JUNE  TERM,  1863.  351 

Lon?  V.  Clav. 


Court  of  Equity  for  the  same  county,  in  which  he  alleged  that 
he  untl  the  plaintiti"'s  intestate  had,  some  time  before,  been 
enjj::aged  as  {)artners  in  the  mannfactnre  of  tobacco  ;  that  they 
di^olved  the  co-partnership  by  consent,  and  had  a  partial  set- 
tlement, upon  which  lie  gave  the  bond  sued  upon  at  law. 
He  then  alleged  that  there  were  many  outstanding  debts 
airainst  the  firm,  of  which  he  was  not  aware,  when  he  gave 
the  bond  in  question;  that  upon  a  settlement  ot  the  accounts 
of  the  firm,  very  little,  if  any  thing,  would  be  drte  the  plain- 
tiff'; that  he  had  no  defense  against  the  suit  at  law;  and  he 
prayed  for  an  account  of  the  partnerslup  business  and  for  an 
injunction  against  the  suit  until  that  account  should  be  taken. 
The  plaintitt;  at  law,  filed  an  answer  to  the  bill.  It  did  not 
appear  that  any  injunction  had  been  issued.  When  the  suit  at 
law  was  called  for  trial,  the  plaintiff's  counsel  announced  his 
readiness  to  proceed  and,  informing  the  Court  of  the  penden- 
cy of  the  procedingin  the  court  of  equity,  demanded  that  rhe  de- 
fendant should  submit  to  a  judgment,  tiireatening  that  if  he  did 
not,  he,  the  counsel,  would  move  for  an  attachment  against  hira 
in  the  court  of  equity.  The  defendant  refused  to  comply  with  the 
demand;  on  the  contrary,  he  applied  for,  and  on  cause  shown, 
obtained  a  continuance  of  the  suit.  When  the  equity  docket 
was  taken  up,  the  defendant  in  tlie  suit  in  that  court,  filed  an 
affidavit,  in  which  he  stated  the  proceedings  above  mention- 
ed, and  moved  for  an  attacliment  against  the  ]>lainritt'  in 
equity,  for  his  refusal  to  submit  to  a  judgment  in  the  court  of 
law.  His  Honor  declined  to  make  the  order,  but  allowed  an 
appeal  fnMU  his  order  of  refusal  to  the  Supreme  Court. 

We  approve  the  course  adopted  by  his  Honor.  The  plain- 
tiff, in  equity,  did  not  press  his  application  for  an  injunction 
against  the  suit  at  law,  and  there  was  nothing  to  hinder  the 
plaintiff  from  obtaining  his  judgment  as  soon  as  the  course 
and  practice  of  the  court  would  allow  him.  Had  the  plain- 
tiff', in  equity,  applied  for  a  fiat  for  an  injunction,  the  Judge 
or  Court,  to  whom  the  application  was  made,  might  well  have 
refused  to  grant  it,  except  upon  the  terms  of  submitting  to  a 
judgment  in  the  suit  at  law.     Tlie  authorities,  referred  to  by 


352  IN  THE  SUPREME  COURT. 

— 1^ 

Rouse  V.  Lee. 

the  counsel  for  the  defendant  in  equity,  to  wit:  Adams'  Eq. 
194-195,  and  2  Star.  Eq.  pages  174-175,  do  not  embrace  a 
case  like  the  present. 

Upon  another  ground,  we  think  the  correctness  of  his  Hon- 
or's couree,  may  be  sustained.  When  the  cause  in  the  court 
of  law  was  called  for  trial,  no  order  in  the  court  of  equity  had 
been  obtained,  or  even  applied  for.  The  counsel  only  threat- 
ened what  he  intended  to  do,  when  the  court  of  equity  should 
sit  for  the  despatch  of  business.  The  defendant  at  law  could 
not,  then,  be  guilty  of  a  contempt  of  Court  for  not  obeying 
an  order  which  had  no  existence. 

The  order,  from  which  the  appeal  was  taken,  must  be  af- 
firmed, and  this  must  be  certified. 

Per  Curiam,  Doretal  order  affirmed. 


CALVIN  ROUSE  agaimt  JOHN  L.  LEE  and  otims. 

Money  arising  by  the  sale  of  tiie  wife's  la^d  by  a  deed  execaited  by  the 
husband  and  wife  lias  none  of  the  characteristics  of  real  estate,  and  after  the 
death  of  the  wile,  goes  to  the  husband  jure  mariti. 

{Little  V.  McLendon,  5  Jones'  Eq.  216,  cited  and  approved.) 

Cause  removed  from  the  Court  of  Equity  of  Lenoii'  county, 

A  tract  of  laud  having  descended  to  Rebecca  Lee,  wife  of 
the  defendant,  JhIiu  L.  Lee,  from  her  father,  it  was  agreed 
between  them  tliat  they  would  make  sale  of  the  same,  and  as 
Lee  was  much  in  debt,  and  there  was  danger  that  the  pro- 
ceeds of  such  sale  might  be  taken  for  his  debts,  it  was  agreed 
by  parol  that  the  proceeds  should  be  paid  into  the  hands  of  a 
trustee  for  her  benefit.  Accordingly,  the  land  was  sold  by  a 
joint  deed  of  Lee  and  his  wife  to  "one  Wiley  Rouse,  she  being 
privily  examined  and  said  Wiley  Rouse  paid  the  purchase- 
money,  $1900,  to  one  Chris'opher  L.  Davis,  who  agreed 
to  hold  it  for  the  benefit  of  the  wife,  but  afterwards  agreeing 


JUNE  TERM,  1863.  353 

Rouse  V.  Lee. 

to  borrow  tlie  money  for  himself,  he  made  his  note  for  the  res- 
idue not  used  by  Mrs.  Lee,  to  wit,  $1400,  to  tlie  plaintiff',  who 
agreed  that  lie  would  hold  the  money  on  the  like  trust,  but 
no  written  memorial  was  ever  made  of  this  trust.  Mrs.  Lee 
having  died,  the  plaintifi'  administered  on  her  estate,  and  tiled 
this  bill  against  J.  L.  Lee,  and  the  children  of  Lee  and  his  wife, 
who  are  the  heirs-at-law  of  Mrs.  Lee,  alleging  that  Lee  claims 
the  fund  as  husband  of  his  late  wife,  and  that  the  other  de- 
fendants, the  children,  claim  it  as  having  the  impress  of  real- 
ty, and  he  calls  upon  the  parties  to  interplead  and  have  their 
rights  settled  by  a  decree  of  the  Court  of  Equity,  so  that  he 
may  be  indemnified  in  paying  it  to  the  one  part}' or  the  other. 
The  said  John  L.  Lee  and  the  children  each  answered  the 
bill,  claiming,  as  suggested  above,  and  submitting  that  the 
Court  should  do  what  was  right  and  equitable  between  them. 
The  cause  was  set  down  for  hearing  on  bill  and  answers,  and 
sent  to  this  Court. 

J.  ^V.  Bryan,  for  the  plaintiff. 

G.  Washingto7i,  for  the  defendants. 

Manly,  J.  The  question  presented  by  the  pleadings  in 
this  case,  is,  w'hether  a  fund  in  the  hands  of  the  complainant, 
as  administrator  of  Rebecca  Lee,  should  be  paid  to  the  hus- 
band as  her  legal  representative,  or  (as  it  arose  originally  from 
the  sale  of  real  estate)  to  her  children,  as  heirs-at-law. 

There,  is  no  ground  for  holding  that  this  fund  retained  any 
of  the  characteristics  of  real  property.  It  was  competent  for 
the  parties,  by  a  proper  settlement,  to  have  impressed  this 
character  upon  it,  but  they  have  not  done  so,  and  it  must, 
therefore,  be  transmitted  according  to  the  rules  which  govern 
the  distribution  of  chattel  property. 

The  agreement,  by  which  the  fund  was  subjected  to  a  trust, 
seems  to  have  had  for  its  object  the  benefit  of  the  wife  alone, 
and,  therefore,  according  to  a  well  established  principle  of 
equity,  upon  her  death,  the  fund  passed  to  her  husband.  This 
was  recently  declared  in  this  Court,   in  the  case  of  Zitile  v. 


354  m  THE  SUPREME  COURT. 

Frizzle  v.  Patrick. 

McLendon^  5  Jones'  Eq.  216,  where  the  authorities  will  be 
found  cited. 

The  parties  interested  may  have  a  reference  to  the  clejk  of 
this  Court,  to  take  an  account  of  the  fund  and  report  tiie  i-esi- 
due  after  deducting  the  costs  of  administration,  (the  costs  of 
this  bill  included,)  which  residue  should  be  paid  to  the  hus- 
band. 

Per  Curiam,  Decree  accordingly. 


WILLIAM  FRIZZLE  aud  others  against  JOEL  PATRICK. 

It  is  the  <:eneral  course  of  the  court  of  equity,  on  applications  to  restrain  pri- 
vate nuisances  by  an  injunction,  to  order  an  issue  at  law  to  ascertain  the 
fact  of  the  existence  of  such  nuisance  before  the  Court  will  act. 

Where  a  party  has  no  particular  interest  in  an  alleged  nuisance  from  the  pond- 
ing back  of  water,  he  cannot  sustain  a  bill  for  an  injunction,  but  must  rely  on 
the  remedy  hy  information  in  the  name  of  the  Attorney  General. 

This  was  an  appeal  from  the  Court  of  Equity  of  Pitt  county. 
The  plaintiffs,  William  Frizzle,  Warren  Frizzle,  Charles 
Rogei'S  and  Jesse  Hart,  set  forth  in  their  bill,  that  tiie  ])lain- 
tiffs,  William  and  Jesse  Frizzle,  conveyed  each  a  small  ti-act 
of  land  to  the  defendant  and  one  Lewis  B.  Pugh,  to  enable 
them  to  erect  a  mill  on  little  Oontentnia  Creek,  and  that  they 
did  so  about  the  year  1850,  and  that,  at  the  same  time,  the 
parties  agreed,  by  parol,  as  a  part  of  tlie  equivalent  for  tliis 
agreement,  the  said  Patrick  and  Pugh  were  to  keep  a  flat  in 
their  mill-pond  to  transport  produce  for  the  neighborhood, 
and  t(i  pay  them  ;  that  the  said  grantees  did  erect  a  mill-dam, 
and  by  that  means,  ponded  back  the  water  so  as  to  injure  the 
plaintiffs,  W.  and  y\  .  Frizzle,  in  a  very  great  degree  by  over- 
flowing iheir  tillable  land,  and  to  injure  all  the  plaintitfs  and 
other  neighbors,  by  causing  jyi  uncommon  amount  of  sickness; 
that  the  said  mill  was,  shortly  before  filing  the  bill,  bui-ned 


JUNE  TERM,  1863.  355 


Frizzle  v,  Patrick. 


down,  and  that  against  tlieir  earnest  remonstrances,  and  in 
disregard  of  large  pecuniar}-  offers  on  their  part,  the  defend- 
ant, Patrick,  who  liad  purchased  out  Pugh,  was  preparing  to 
rebuild  the  mill,  and  the}'  appreliended  tlie  same  injurious 
consequences  to  their  health.  The}'  further  allege,  that  the 
defendant  totally  disregarded  his  promise  to  put  a  flat  in  his 
mill-pond  while  the  dam  was  np,  and  refused  to  make  com- 
pensation to  tlie  Messi's.  Frizzle  for  damage  done  to  their 
lands  by  ponding  back  the  water  on  them.  The  prayer  is  for 
an  injunction  to  restrain  the  defendant  from  rebuilding  his 
mill-dam  and  for  general  relief. 

The  answer  of  the  defendant,  denies  that  any  extraordinary 
amount  of  sickness  was  ])roduced  by  his  mill-pond.  lie  ad- 
mits that  a  very  fatal  disease  prevailed  during  a  part  of  the 
time  his  pond  was  in  exiistence,  but  he  sa3'8  this  was  a  dis- 
ease, called  diptheria,  and  as  he  is  advised  by  medical  men, 
was,  in  no  degree,  ])rodnced  or  aggravated  by  standing  wa- 
ter ;  that  it  pi'cvailed  as  much  in  neighborhoods  where  there 
was  no  watercoui-se  as  in  that  of  his  mill-pond,  and  has,  in  no 
degree,  abated  since  his  mill  has  been  burned  and  the  water 
off.  lie  admits,  that  he  said  in  conversin":  about  establishinir 
a  mill,  that  he  intended  to  keep  a  flat  in  his  mill-pond,  but 
he  denies  that  he  made  any  deliberate  contract  to  that  effect, 
or  that  this  consideration  entered,  in  a  material  degree,  into 
their  bargain,  and  that  no  one  has  ever  desired  such  a  flat,  or 
called  on  him  to  put  one  in  liis  pond,  and  insists  that,  even  if 
this  was  as  alleged  by  plaintiffs,  that  they  have  an  adequate 
remedy,  at  law,  for  the  breach  of  this  contract.  He  sets  forth, 
speciiically,  the  deeds  made  to  him  by  tiie  plaintiffs,  William 
and  AVarren  Frizzle,  which,  in  the  former  parts  thereof,  are  in 
the  usual  form,  and  then  contain  this  clause,  (in  the  deed 
from  William,)  "  and  1,  the  said  William  R.  Frizzle,  in  the 
bargain,  have  bai'gained  and  sold  unto  the  said  Lewis  Pugh 
and  Jiiel  Patrick,  the  full  and  lawful  privilege  of  ponding  the 
water  back  npon  my  creek  low  ground,  above  the  said  Lewis 
Pugh  and  Joel  Patrick's  mill-seat,  to  a  snflicient  head  of  wa- 
ter to  run  the  mill,  or  any  machinery  whatever,  provided  the 


356  IN  THE  SUPREME  COURT. 

Frizzle  v.  Patrick. 

water  does  not  back  upon  an)'  of  my  hi2:li  or  tenable  lands;  if 
so,  we,  the  said  Lewis  i^iigli  and  Joel  Patrick,  do  bind  our- 
selves and  assigns  to  the  said  William  R.  Frizzle,  a  fair  price 
for  all  the  high  or  tenable  land  the  mill  may  cover,"  and  the 
deed  from  Warren  Frizzle,  conveyed  his  tract  of  land,  by  a 
deed,  containing  the  like  provisions.  He  further  alleges,  in 
his  answer,  that  before  this  bill  was  filed,  he  offered  to  leave 
it  to  men,  mutually  chosen  by  them,  to  say  what,  if  any,  dam- 
ages had  been  sustained  by  the  plaintiff,  William's  high  or 
tillable  lands,  and  to  pay  whatever  might  be  assessed  by  them, 
and  that  he  refused  to  agree  to  these  terms,  or  in  any  way  to 
settle  amicably  this  question  of  damages.  He  insists  that, 
according  to  the  written  contract  between  them,  if  either  of 
the  Messrs.  Frizzle  has  any  claim  of  this  kind,  he  has  a  full 
and  adequate  remedy  at  law.  He  admits  that  he  is  about  to 
rebuild  his  mill,  but  says  that  neither  of  these  parties  has  any 
equitable  ground  to  prevent  him  from  so  doing  ;  that  as  to 
the  Messrs.  Frizzle,  they  are  concluded  by  the  terms  of  their 
deeds,  from  interfering  through  the  court,  and  as  to  the  other 
plaintiffs,  they  have  no  interest  or  ground  of  complaint  what- 
ever. 

On  the  coming  in  of  the  answer,  the  defendant  moved  to 
dissolve  the  injunction,  which  his  Honor  refused,  but  order- 
ed it  to  be  continued  to  the  hearing,  from  which  order  the 
defendant  appealed  to  this  Court. 

Foiole  and  Phillips^  for  the  plain tifts. 
Donnell  and  J.  W.  jBryan,  for  the  defendant. 

Pearson,  C.  J.  Treating  the  bill  as  a  proceeding  for  an 
injunction  against  a  private  nusiance,  we  are  of  opinion  that 
the  plaintiffs,  William  Frizzle  and  Warren  Frizzle,  are  con- 
cluded by  the  deeds  which  they  executed  to  Joel  Patrick  and 
Lewis  Pngh,  for  the  parcels  of  land  on  the  north  and  south 
sides  of  the  creek,  for  the  express  purpose  of  enabling  them 
to  erect  a  dam,  and  pond  back  the  water  in  order  to  get  a 
head  of  water  sufficient  to  run  a  mill ;  so  they  cannot  be  heard 


JUNE  TERM,  1863.  357 


Palls  V.  Dickey. 

to  complain  against  their  own  deed.  In  regard  to  the  flat,  if 
there  has  been  a  breach  of  contract  on  the  part  of  the  defend- 
ants, the  remedy  at  law  is  adequate,  and  certainly,  a  breach 
of  contract,  in  that  particular,  is  not  a  sufficient  ground  to  in- 
duce a  court  of  equity  to  interfere  by  its  writ  of  injunction. 

In  the  case  of  a  private  nuisance,  the  rule  in  this  Court  is, 
that  the  fact  of  nuisance  should  be  established  by  an  action 
at  law  before  an  injunction  will  issue,  with  certain  exceptions 
as  in  the  ease  of  Clark  v.  Lawrenre,  ante  83,  where  an 
issue  was  ordered  on  the  fact  of  nuisai'.ceor  no  nuisance.  This 
comes  within  the  general  rule,  and  wc  can  see  no  ground  on 
which  to  make  it  an  exception  and  direct  an  issue,  imless  the 
rule  is  to  be  disregarded  altogether.  They  have  been  paid 
for  the  privilege  of  erecting  a  mill  at  the  site  set  out  in  the 
proceeding,  and  are  concluded  in  respect  to  a  'private  nuis- 
ance. The  other  plaintiffs,  Jesse  Hart  and  Charles  Rogers, 
show  no  particular  interest  in  this  matter,  and  must  stand 
like  any  other  citizens,  who  are  objecting  to  the  erec- 
rion  of  a  public  nuisance.  In  other  words,  they  must  file  an 
information  in  the  name  of  the  Attorney  General,  setting 
forth  their  reasons  for  believing  that  the  defendant,  Patrick, 
18  about  to  commit  a  public  nuiscmce,  and  making  that  the 
ground  for  asking  the  interference  of  this  Court  by  its  writ  of 
injunction.  Decretal  order  of  the  Court  below  reversed  and 
injunction  dissolved. 

Viai  CuKiAM,  Decree  accordingly. 


ROBERT  PALLS  against  JAMES  DICKEY. 

Where  a  plaintiff  has  a  remedy  al,  law  on  a  covenant  of  quiet  enjoyment,  and 
brings  a  bill  in  equity  against  the  covenantor  on  account  of  his  non-resi- 
iience  in  the  State,  it  is  necessary  for  him  to  aver  also,  that  the  defendant 
Us  no  property  or  effects  in  this  State,  out  of  which  satisfaction  could  be 
bftd  upon  hij  recovery  at  law. 

2 


358  m  THE  SUPREME  COURT. 

Falls  V.  Dickey. 

Where  such  a  suit  is  brought,  and  it  appears  that  the  plaintiflF,  in  obtaining 
his  deed  and  covenant,  practiced  to  get  an  unfair  advantage  of  the  defend- 
ant, the  Court  of  Equity  will  not  grant  him  relief,  but  will  leave  him  to  hie 
remedy  at  lav/. 

Cause  removed  from  the  Court  of  Equity  of  Cleaveland. 

The  bill  alleges,  that  the  plaintiff  purchased  a  tract  of  land 
l3ang  in  the  county  of  Gaston,  and  took  a  deed  in  fee  for  two 
hundred  acress,  for  which  he  gave  his  notes  for  $400  ;  that 
said  deed  contained  a  covenant  for  quiet  enjoyment  of  that 
estate  ;  that  about  eighty  acres  of  the  best  of  this  land  was 
covered  by  the  dower  of  widow  Mrs.  Mary  Falls,  and  that 
he  had  utterly  failed  to  get  possession  of  that  much  of  the 
land  he  had  purchased  ;  that  the  defendant  is  a  citizen  of  the 
State  of  Arkansas.  lie  states  that  he  has  been  sued,  at  law, 
on  the  bonds  given  for  the  purchase-money,  and  that  judg- 
ment has  been  obtained  against  him  in  the  county  court  of 
Gaston,  and  execution  threatened  to  be  issued  against  him  for 
the  amount.     The  prayer  is  for  an  injunction. 

The  defendant,  in  his  answer,  saj^s,  that  being  about  to  re- 
move to  the  State  of  Arkansas,  he  made  a  public  vendue  of 
the  laud  in  question,  and  his  other  property  ;  that  at  the  time 
this  land  was  offered  for  sale,  the  cryer  distinctly  made  known 
that  it  was  sold  subject  to  the  dower  of  Mrs.  Falls  ;  that  the 
laud  was  bid  off  by  the  plaintiff,  but  that  no  deed  was  then  execu- 
ted by  him,  but  that  he  furnished  him  with  the  deed,  which  he, 
defendant,  had  taken  when  he  bought  the  land,  and  desired 
him  to  have  a  deed  prepared  ;  that  in  the  deed,  thus  furnish 
ed,  the  dower  was  excepted  ;  that  the  j)laintiff  was  a  relation 
of  Mrs.  Falls,  and  lived  near  to  her,  and  well  knew  that  she 
had  a  dower  in  the  said  tract  of  land  ;  that  for  fifteen  years 
Mrs.  Falls  lived  on  this  dower  land,  and  was  so  living  at  the 
time  of  the  sale  ;  that  shortly  after  this  auction,  the  plaintiff' 
came  to  where  he  lived,  while  he  was  loading  his  wagons  to 
remove  from  the  State,  and  when  every  thing  was  in  confu- 
sion around  him,  and  presented  him  for  execution,  a  deed, 
which  he,  plaintiff,  had  prepared,  and  told  him  that  it  was  all 
correct  and  drawn  according  to  the  deed  furnished  him  at  the 


JUNE  TERM,  1863.  359 


Falls  V.  Dickey. 


«ale  as  a  guide  ;  that  having  confidence  in  plaintiff's  integri- 
ty, and  being  thus  in  confusion,  he  executed  the  deed,  in 
-question,  which  he  now  finds,  to  liis  surprise,  is  an  absolute 
conveyance  of  the  whole  estate  in  the  land,  without  any  ex- 
ception of  Mrs.  Falls'  dower,  and  in  this  he  was  grossly  de- 
ceived and  defrauded  by  the  plaintifi'. 

The  defendant  further  says,  that  the  plaintifi"  had  no  occa- 
sion to  go  into  a  court  of  equity  on  account  of  his  resi- 
dence in  another  State,  for  that  at  the  time  of  filing  this  bill, 
defendant  had  property,  in  this  State,  to  the  amount,  at  least, 
of  $5,000. 

There  was  evidence  taken  in  the  cause,  the  material  part  of 
which,  is  alluded  to  by  the  Court,  and  the  cause  was  set  down 
for  hearing  on  the  bill,  answers,  proofs  and  exhibit,  and  sent 
to  this  Court. 

'No  counsel  for  the  plaintift\ 
Foiole^  for  the  defendant. 

Battle,  J.  We  have  no  hesitation  in  denying  to  the  plain- 
tifi" the  relief  which  he  seeks.  It  is  clearly  proved,  that  at  the 
time  he  purchased  the  tract  of  land,  mentioned  in  the  plead- 
ings, he  had  full  knowledge  of  the  incumbrance  of  which  he 
complains,  and  we  very  much  suspect,  that  when  he  prepared 
the  deed  for  an  absolute  conveyance,  he  intended,  if  he  could 
get  the  bargainor  to  execute  it,  to  take  an  unfair  advantage 
of  him.  His  remarks  made  at  various  times,  to  difi'erent  per- 
sons, show  that  he  thought  he  had  got  a  bargain  of  the  de- 
fendant, and  that  he  was  determined  to  make  the  most  of  it. 
If  the  covenants  contained  in  his  deed,  can  avail  him  at  law, 
let  him  seek  a  remedy  there.  This  Court  will  certainly  not 
aid  him  in  his  intended  sharp  practice. 

But  independently  of  his  failure  upon  the  merits  of  his  case, 
the  plaintiff' has  not,  by  his  own  bill,  shown  himself  entitled 
to  relief  in  a  court  of  equity.  He  has  alleged,  indeed,  in  his 
bill,  that  the  defendant  is  a  resident  of  the  State  of  Arkansas, 
but  he  has  altogether  omitted  to  aver  that  he  had  no  property 


360  IN  THE  SUPREME  COURT. 

Smith  V.  Morehead. 

or  effects,  in  this  State,  out  of  which  to  make  good  the  dam- 
ages, which  might  be  recovered  in  a  action  on  the  coven- 
ant for  quiet  enjoyment.  This  omission,  we  deem  fatal  to  his 
right  to  come  into  this  Court  for  relief.  See  Green  v.  Gamp- 
deU,  2  Jones'  Eq.  447 ;  Richardson  v.  'Willia7ns^  3  Jones' 
Eq.  116. 
The  bill  must  be  dismissed  with  costs. 

Per  Cdeiajvi,  Bill  dismissed. 


MARY  ANN  SMITH  agamsi  JAMES  T.  MOREHEAD. 

As  a  general  rule,  an  objection  to  the  jurisdiction  of  the  court  of  equity  may 
be  taken  on  demurrer  when  the  facts  appear  upon  the  record. 

Jmpotency  in  a  husband  does  not  render  a  marriage  by  him,  void  ah  initio,  but 
only  voidable  by  sentence  of  separation,  and  until  such  sentence,  it  is  deem- 
ed valid  and  subsisting. 

The  domicil  of  the  husband,  draws  to  it  the  domicil  of  the  wife ;  therefore,  ac- 
cording to  the  14th  Rule  of  the  3d  section  of  the  32  chapter  of  the  Revised 
Code,  where  both  parties  are  residing  in  this  State,  a  bill,  by  the  wife,  for 
a  divorce,  for  the  cause  of  impotency,  must  be  brought  in  the  county  where 
the  husband  resides. 

Cause  removed  from  the  Court  of  Equity  of  Wake  county. 
The  facts  are  sufficiently  stated  in  the  opinion  of  the  Court. 

Mom'c,  for  the  plaintiff. 
Graham,  for  the  defendant. 

Battle,  J.  The  plaintiff  in  her  bill,  which  was  filed  in 
the  Court  of  Equity,  for  the  county  of  Wake,  alleged,  that  on 
the  30th  day  of  April,  1861,  the  marriage  ceremony  was  per- 
formed, in  the  city  of  Raleigh,  between  her  and  the  defend- 
ant, James  T.  Morehead ;  that  she  had  been  ever  since  her 
birth,  and  was  still,  a  resident  of  the  city  of  Raleigh,  in  the 
county  of  Wake,  and  the  defendant  was  a  resident  of  the 


JUNE  TEEM    1863.  361 


Smith  V.  Morehead. 


county  of  Gnilford  ;  that  after  coliabitiug  with  the  defendant 
some  two  or  three  weeks,  she  found  him  to  be,  and  she  aver- 
red that  he  was,  utterly  and  incurably  impotent ;  that  in  con- 
i^equence  of  such  irapotency,  the  pretended  marriage  between 
her  and  the  defendant  was  null  and  void  ;  and  she  prayevl 
that  it  might,  by  a  decree  of  the  Court,  be  declared  null  and 
void ;  and  further,  that  she  might  have  a  decree  divorcing  her 
from  the  bonds  of  matrimony. 

The  defendant  demurred  to  the  bill,  for  the  want  of  juris- 
diction in  the  court  of  equity  for  the  county  of  Wake.  The 
cause  was  set  for  hearing  on  the  demurrer,  and  by  consent 
was  removed  to  the  Supreme  Court. 

Our  opinion  being  in  favor  of  the  defendant,  upon  the  ques- 
tion of  jurisdiction,  we  have  deemed  it  proper  to  state  only 
the  facts  which  are  necessary  to  raise  it. 

That,  as  a  general  rule,  an  objection  to  the  jurisdiction  of 
the  court  of  equity  may  be  taken  on  a  demurrer,  when  the  facts 
appear  upon  the  record,  is  settled.  Indeed,  it  is  said  by  Mr. 
Adams,  that  want  of  jurisdiction  is  one  of  tiie  most  ordinary 
grounds  of  a  demurrer  in  equity ;  Adams'  Eq.  333.  The 
principle  of  the  defense  by  demurrer  is,  that  on  the  plaintiff's 
owil  sliowing,  his  claim  cannot  be  supported,  and  that,  there- 
fore, it  is  needless  for  the  defendant  to  answer  the  bill-  If  the 
plaintiff  show  that  the  Court  cannot  entertain  jurisdiction  of 
his  cause,  there  seems  to  us  as  much  reason  for  permitting  the 
defendant  to  urge  that  objection,  as  to  insist  upon  any  other, 
which  is  disclosed  by  the  facts  stated  in  the  bill.  The  plain- 
tiff's counsel  does  not  deny  this;  but  insists  that  when  the 
want  of  jurisdiction  arises  from  the  fact,  that  the  suit  is  brought 
in  the  wrong  county,  the  objection  can  only  be  taken  by  a 
plea  in  abatement,  under  an  express  provision,  to  that  effect, 
in  the  Revised  Code,  chapter  32,  section  3,  rule  14.  The  last 
clause  of  that  rule  does  say,  indeed,  that  if  the  suit  be  brought 
in  any  other  county  than  is  therein  prescribed,  it  "may  be 
abated  on  plea;"  so  it  may,  and  so  it  must,  if  the  fact,  that 
the  suit  is  in  the  wrong  county  do  not  appear  on  the  record  ; 
but  if  the  objection  appear   in  the    bill  itself,  a  plea  is  unne- 


362  IN  THE  SUPREME  COURT. 

Smith  V.  Morehead. 

cessaiy  and  a  demurrer  is  proper  to  be  used.  It  is  well 
known  that,  in  equity,  the  statute  of  limitations  is  generally 
used  as  a  defense  by  a  plea,  but  it  is  now  held,  that  if  by  the 
plaintiff's  own  showing,  his  equity  is  barred  by  the  statute  of 
limitation,  no  plea  is  necessary ;  see  Whitfield  v.  Hill,  5 
Jones'  Eq.  321 ;  Robinson  v.  Lewis,  Bush.  Eq.  58. 

We  come  now  to  the  question,  whether  the  suit  was  brought 
in  the  wrong  county,  and  the  solution  of  that  depends  upon  the 
enquiry,  whether  a  valid  marriage  was  contracted  bj^  the  per- 
formance of  the  marriage  ceremony  between  the  plaintiff  and 
defendant,  and  if  it  were,  what  effect  did  it  have  upon  the 
domicil  of  the  parties.  The  counsel  for  the  plaintiff  contends, 
that  there  was  no  marriage  ;  that  by  reason  of  the  defend- 
ant's impotency,  the  performance  of  the  marriage  ceremony 
between  the  parties  had  no  legal  effect,  and  that,  therefore, 
what  passed  between  them  was  a  mere  nullity.  This,  we 
think,  is  a  great  mistake.  Impotency  is  a  good  cause  for  a 
divorce  a  vinculo  Tnatrimonii,  but,  it  does  not,  like  idiocy  or 
lunacy  in  one  or  both  parties,  make  the  alleged  marriage  a  nulli- 
ty ah  initio.  Mr.  Blackstone,  after  stating  that  marriage  is  re- 
garded by  the  lawasa  civil  contract,  and  that  to  be  valid,  it  must 
be  between  parties  willing  and  able  to  contract  and  who  do  con- 
tract in  proper  forms  and  solemnities,  says  that,  in  general,  all 
persons  are  able  to  contract  themselves  in  marriage,  unless 
they  labor  under  some  particular  disabilities  and  incapacities- 
These  disabilities  are  of  two  sorts  ;  first,  such  as  are  canon- 
ical and,  therefore,  sufficient,  by  the  ecclesiastical  laws,  to 
avoid  the  marriage  in  the  spiritual  court ;  but  these,  in  our 
law,  onlj- make  the  marriage  voidable,  and  not  i2}so  facto 
void,  until  sentence  of  nullity  bo  obtained.  Of  this  nature 
are  precontract,  consanguinit}'  or  relation  by  blood  and  affin- 
ity, or  relation  by  marriage  and  some  particular  corporal  in- 
firmities;"  1  Bla.  Com.  434.  After  some  other  remarks  about 
the  nature  of  these  disabilities,  the  great  commentator  adds, 
"  But  such  marriages  not  being  void  ab  initio,  but  voidable 
only  by  sentence  of  separation,  they  are  deemed  valid  to  all 
civil  purposes,  unless  such  separation  is  actually  made,  during- 


JUNE  TERM,  1863.  363 

Smith  V.  Morehead. 

the  life  of  the  parties."  See  also  Elliott  v.  Gurr,  2  Phil.  Ec. 
Oases,  16  ;  1  Moore,  223 ;  Noy  29  ;  Cro.  Car.  352  ;  1  Roper 
on  H.  and  W,  333.  Among  these  disabilities  it  is  seen,  that 
"  some  particular  corporal  infirmities"  are  mentioned.  Thus, 
the  impotency  of  the  husband,  at  the  time  of  the  marriage,  to 
consummate  it,  and  still  continuing,  is  a  good  ground  lor  an- 
nulling it;  2  Phil.  Ec.  Ca.  10.  But  until  a  sentence  of  di- 
vorce is  obtained,  the  marriage  is  regarded  as  valid  and  sub- 
sisting. 31r.  Shelf ord  says  expressly,  that  "  canonical  disa- 
bilities, such  as  consanguinity,  affinity  and  certain  corporal 
infirmities,  only  make  the  marriage  voidable  and  not  ipso 
facto  void,  until  sentence  of  nullity  be  obtained,  and  for  this, 
he  cites  2  Phil.  Ecc.  Cases  19,  25."  If  this  were  not  so,  the 
triennial  cohabitation  required  by  the  Ecclesiastical  courts 
(and  which  we  presume  our  courts  would  be  bound  to  insist 
upon)  before  they  will  entertain  a  suit  for  a  divorce  on  ac- 
count of  impotency,  would  seem  to  be  a  strange  requisition  ; 
see  Shelf,  on  Mar.  and  Div.  203,  (33  Law  Lib.  171.) 

The  second  kind  of  disabilities,  mentioned  b}'-  Mr.  Black- 
stone,  are  what  he  calls  civil,  that  is,  such  as  are  enforced  by 
the  municipal  laws.  Among  these  are  incapacities  of  a  for- 
mer subsisting  marriage,  and  that  of  a  want  of  reason.  These 
make  the  marriage  absolutely  null  and  void  ab  initio,  and  the 
pretended  marriage  may  be  so  treated  without  any  sen- 
tence pronounced  by  a  court ;  though  in  the  case  of  a 
want  of  reason  in  one  of  the  parties  w'hen  the  marriage  was 
contracted,  the  Court  will  entertain  a  suit  for  a  nullity  of  the 
marriage.  This  was  done  in  the  case  of  Johnson  v.  Klncaid^ 
2  Ired.  Eq,  470,  and  Crumj)  v.  Morgan,  3  Ired.  Eq.  91,  re- 
ferred to  by  plaintiff's  counsel.  In  the  former  of  these  cases, 
the  pretended  husband  was  an  idiot,  and  in  the  latter,  the 
wife  was  a  lunatic  at  the  time  of  the  celebration  of  the  mar- 
riage. In  both  cases,  the  alleged  marriages  were  pronounced 
to  have  been  nullities  from  the  beginning,  and  the  Court  pro- 
nounced sentence,  not  of  divorce,  but  of  nullity.  From  what 
we  have  said,  it  is  clear,  that  the  performance  of  the  marriage 
ceremony  between  the  parties  now  before  the  Court  made 


364  m  THE  SUPREME  COURT. 

Smith.  V.  Morehead. 

them,  to  all  intents  and  purposes,  man  and  wife,  and  they 
must  so  remain,  until  death  or  a  divoi'ce  shall  separate    them. 

This  being  so,  the  only  remaining  inquiry  is,  what  effect 
the  marriage  had  upon  the  domicil  of  the  parties  :  Upon  this 
question,  we  think  the  law  is  well  settled;  in  the  case  of  War- 
render  v,  Warrender ^  9  Bligh.  liep.  89,  before  the  House  of 
Lords,  it  was  laid  down  in  the  strongest  terms,  that  the  domi- 
cil of  the  husband  drew  to  it,  in  law,  that  of  the  wife.  Tliat 
was  the  case  of  a  suit  for  a  divorce,  and  it  was  follow- 
ed by  anotlier  suit  of  the  same  kind,  before  the  consistory 
court  of  London,  in  which  Dr.  Lushington  held  the  same  doc- 
trine, 2  Curtis'  Rep.  35,  (7  Eng.  Ec.  Rep.  139).  It  is  unne- 
cessary to  multiply  authorities  upon  this  point,  for  the  gener- 
al rule  seems  to  have  been  assumed  to  be,  as  we  now  state  it, 
in  the  very  case  oi  Sohnwald  v.  Slionwald^  2  Jones'  Eq.  367, 
relied  upon  by  plaintiff's  counsel  to  disprove  it.  In  that  case 
we  decided,  indeed,  that  upon  the  construction  of  the  7th 
section  of  39th  chapter  of  Revised  Code,  a  wife  residing  in 
another  State,  could  not  be  considered  as  a  resident  of  this 
State,  for  the  purpose  of  suing  her  husband  for  a  divorce  in 
our  courts.  The  language  of  the  act,  upon  which  the  con- 
struction was  placed,  is  as  follows :  "  ISTor  shall  any  ])erson  be 
entitled  to  sue,  unless  he  or  she  shall  have  resided  within  the 
State  three  years  immediately  preceding  the  exhibition  of  the 
petition."  It  was,  undoubtedly,  competent  for  the  Legisla- 
ture to  enact  that  the  actual  residence  of  the  wife,  out  of  the 
State,  should  not  be  considered  as  a  legal  residence  with  hef 
husband,  in  the  State,  for  the  purpose  of  enabling  her  to  sue 
him  in  the  courts  of  this  State.  That  was  the  intent  of  the 
Legislature  in  the  act  to  which  reference  is  made,  and  the  ef- 
fect of  the  decision  of  Shonwald  v.  Shontoald,  is  to  carry  out 
that  intent.  In  other  respects,  tlie  rule  remains  unchanged, 
and  where  the  parties  reside  in  the  State,  the  residence  of  the 
husband  still  remains  the  residence  of  the  wife. 

It  follows  that  as  soon  as  the  parties,  in  this  case,  were  mar- 
ried, the  plaintiff  became,  in  law,  a  resident  of  the  county  of 
Guilford,  and  according  to  the  14th  Rule  of  the  3rd  section  of 


JUNE  TEEM,  1863.  365 


Mordecai  V.  Boylan. 


the32d  chapter  of  the  Revised  Code,  her  suit  ought  to  have 
been  instituted  in  the  Court  of  Equity  for  tliat  county. 

The  demurrer  to  the  bill,  for  the  want  of  jurisdiction  in  the 
Court  of  Equity  of  \Yake  county,  is  sustained,  and  the  bill 
dismissed. 

Per  Curiam,  Bill  dismissed. 


GEORGE  W.  MORDECAI  against  WILLIAM  M.  BOYLAN  and  others. 

Where  a  testator,  having  estates  in  tliis  and  two  other  States,  appointed  ati 
executor  here  and  another  residing  in  one  of  the  other  States,  and  provi- 
ded tliat  they  shonl'd  not  be  required  to  give  security,  and  it  appeared  that 
tlie  money  in  the  hands  of  the  executor,  in  this  State,  was  not  sufficient  to 
pay  the  pecuniary  legacies,  it  was  held  to  be  the  intention  of  the  testator 
that  such  executor  was  not  required  to  provtT  ,the  will  abroad  and  collect, 
money  in  the  other  States  to  pay  tiie  legacies  in  full,  and  that  he  must  pay 
the  money  in  his  hands  to  the  legatees  j)ro  rata,  and  that  the  testator  in- 
tended the  executor  abroad  to  administer  the  assets  there. 

Where  the  legatees  were  children  and  grand-children  of  testator'^  wife,  and 
the  assets,  out  of  which  the  pecuniary  legacies  were  to  be  paid,  were  bear- 
ing interest,  it  was  held  that  such  legacies  were  entitled  to  draw  interci-t 
from  the  testatoi's  death. 

Orand-children  and  greai-grand-children  cannot  be  included  in  the  division 
of  a  residue  directed  to  be  made  among  children. 

The  act  of  1800,  chapter  37,  preventing  the  emancipation  of  slaves  by  will, 
applies  to  the  case  of  a  will  made  before  its  passage,  where  a  testator  dic<i 
subsequently  thereto. 

By  the  Act  of  1860,  chapter  .37,  slaves,  attempted  to  be  emancipated  by  will, 
go  to  the  next  of  kin,  and  not  to  the  residuary  legatee. 

Where  a  testator,  in  a  codicil,  gave  as  a  reason  for  a  legacy  to  a  grandson, 
that  he  had  disinherited  such  grandson,  but  the  fact  was,  that  he  had  not 
disinherited  hin:,  but  iiad  given  him  a  large  legacy  in  a  clause  of  his  will, 
it  was  held  that  the  bequest,  in  the  will,  was  not  revoked  by  that  of  ihi; 
codicil,  but  that  the  latter,  itself,  was  void  on  account  of  the  mistake,  and 

Held  further,  that  parol  evidence,  as  to  testator's  feelings  towards  the  lega- 
tee, was  admissible,  in  the  question  of  fact,  as  to  the  mistake. 


366  m  THE  SUPREME  COURT. 


Mordecai  v.  Boylan. 


This  cause  was  sent  up  from  the  Court  of  Equity  of  Wake 
county  by  consent. 

The  facts  of  the  case  are  sufficiently  stated  in  the  opinion  of 
the  Court,  filed  by  Judge  Battle  in  this  Court. 

Moore,  for  the  executor. 

Graham,  for  Catharine  Boylan. 

K.  P.  and  R,  H.  Battle,  for  the  residuary  legatees. 

G.  W.  Haywood,  for  W.  M.  Boylan. 

Winston,  Sr.,  and  Fovde,  for  J.  S.  Boylan. 

Battle,  J.  The  bill  is  filed  for  the  purpose  of  obtaining 
the  advice  and  directions  of  the  Court  as  to  how  the  plaintiff 
shall  act  in  certain  matters  of  difficulty,  which  have  arisen  in 
executing  the  will  of  his  testator,  the  late  William  Boylan. 

1.  It  appears  from  the  will,  that  the  plaintiff  and  three  oth- 
er gentlemen,  all  of  whom,  are  residents  of  this  State,  and 
Henry  Vaughn  of  the  State  of  Mississippi,  are  appointed  ex- 
ecutors, and  it  is  provided  that  no  security  shall  be  required 
of  them,  and  that  they  shall  not  be  liable  for  the  acts,  negli- 
gences and  omissions  of  each  other.  The  plaintiff,  alone,  has 
qualified  as  executor  in  this  State,  and  it  is  understood  that 
Henry  Vaughn  has  qualified  as  such  in  the  State  of  Mississippi. 
The  testator  left  a  large  estate  of  both  real  and  personal  pro- 
perty, consisting  of  lands,  slaves  and  live  stock,  situate  in  both 
of  the  above  named  States — large  amounts  of  Bank  and  Rail- 
road stocks  in  this  State,  and  also  a  large  amount  of  bonds,, 
notes  and  other  evidences  of  debt  due  from  persons  residing 
in  this  State  and  the  States  of  Louisiana  and  Mississippi.  The 
pecuniary  legacies,  given  in  the  will,  amount  to  about  the 
aggregate  sum  of  $125,000,  and  the  legatees,  who  are  >iumer- 
\>us,  reside,  some  in  this  State,  and  others  out  of  it.  The  ex- 
ecutor, in  this  State,  will  not  have  assets  in  his  hands  suffi- 
cient to  satisfy  all  the  pecuniary  legacies,  without  collecting 
the  amounts  due  from  debtors  residing  abroad,  and  he  desires 
the  instruction  of  the  Court — as  to  whether  it  is  his  duty  to 
prove  the  M'ill,  and  take  out  letters  testamentary  in  any  other 


JUNE  TERM,  1863.  367 


Mordecai  v.  Boylan. 


than  this  State  for  the  purpose  of  collecting  the  debts,  which 
may  be  due  from  debtors  residing  there.  ' 

Our  opinion  is,  that  he  is  not.  The  testator  lias  settled  that 
question  himself,  by  appointing  an  executor  residing  abroad  ; 
for  such  executor  must  be  supposed  to  have  been  nominated 
for  the  express  purpose  of  attending  to  the  collection  of  debts 
due  there.  And  it  aids  this  supposition,  that  we  find  the  ex- 
ecutors excused  from  all  responsibility  for  the  acts,  negligen- 
ces and  omissions  of  each  other. 

2.  The  second  inquiry  is,  whether,  if  the  plaintifi  cannot 
collect  money  enough  to  pay  off  all  the  pecuniary  legacies, 
he  must  pay  out  what  he  hasj??/'c>  rata  among  all  the  legatees, 
or  may  he  select  and  pay  whomsover  he  pleases. 

We  cannot  discover  any  thing  in  the  will,  which  gives  one 
legatee  any  preference  over  anotlier.  All  have  equal  claims 
upon  the  executor,  and  in  case  of  a  deficiency  of  assets,  in  his 
hands,  he  must  scale  the  legatees  j9r<?  rata. 

3.  Inteiest,  in  this  case  is,  we  tliink,  to  be  calculated  on  all 
the  pecuniary  legacies  from  the  testator's  death.  All  the  leg- 
atees are  his  wife's  children,  grandchildren  and  a  great-grand 
child,  and  the  assets,  or  nearly  all  the  assets,  out  of  which 
they  are  to  be  paid,  consists  of  debts  due  the  estate,  which 
are  bearing  interest;  see  Williams  v.  Falcon,  ante  235. 

4.  The  testator  clearly  shows  by  his  will,  that  he  under- 
stood the  distinction  between  children  and  grand-children. 
The  general  rule,  therefore,  must  prevail,  that  in  the  division 
of  the  residue,  directed  to  be  made  among  his  children,  the 
testators  grand-children  and  great-grand  child,  cannot  be  in- 
cluded ;    Ward  v.  Sutton,  5  Ired.  Eq.  421. 

5.  The  act  of  1860,  chapter  37,  (see  Acts  of  1860,  1st  ses- 
sion,) I'orbids  the  emancipation  of  David  Matthews,  his  wife, 
and  daughter,  Adelaide.  The  will  was  made  before  the  pas- 
sage of  the  act,  but  the  testator  did  not  die  until  after  that  time. 
The  act  declares,  that  no  slaves  shall  hereafter  be  emancipated 
by  will,  deed,  or  any  other  writing,  which  is  not  to  take  effect  in 
the  life-time  of  the  owner.  The  object  of  the  law  being  to 
prevent  the  emancipation  of  slaves  by  will  or  any  other  in- 


368  IN  THE  SUPREME  COURT. 

Mordecai  v.  Boylan. 

Btrument,  which  is  to  operate  in  the  nature  of  a  will,  we  can 
see  no  reason  why  it  may  not  operate  upon  a  w'ill  made  be- 
fore its  passage,  where  the  testator  dies  afterwards,  as  well  as 
one  made  subsequent  to  tlie  time  of  the  enactment.  In  this 
respect,  it  diifers  from  a  statute  made  for  the  purpose  of 
changing  the  construction  of  n  will,  sucli  as  the  Act  of  1844, 
chapter  88,  (see  Rev.  Code,  chap.  119,  sec.  6,)  which  declar- 
■ed  that  a  will  should  be  construed  to  speak,  with  respect  to 
the  real  and  personal  estate,  comprised  in  it,  as  if  it  had  been 
executed  immediately  before  the  death  of  the  testator.  Such 
a  statute  shall  not  operate  upon  a  will  made  before  its  pas- 
sage, because  the  testator,  when  he  made  it,  is  supposed  to 
have  used  language  with  reference  to  that  law  as  it  then  stood, 
and  the  Legislature  will  not  give -to  such  language  a  differ- 
ent meaning.  This  seems  to  have  been  the  ground,  upon 
which  the  case  of  Battle  v.  Speight^  9  Ired.  288,  was  deci- 
ded. It  is  manifest  that  the  principle  of  the  decision  does 
not  apply  to  the  present  case.' 

6.  The  executor  asks,  what  is  to  be  done  with  the  slaves  in 
case  they  cannot  be  emancipated.  The  act  itself,  answers  the 
question.  It  says,  expressly,  that  they  shall  go  to  the  next  of 
kin,  and  shall  not  pass  under  any  residuary  clause  of  the  will. 

7.  The  most  difficult  inquiry,  propounded  by  the  executor, 
is  that  which  relates  to  the  devise  and  bequests,  in  trust,  for 
the  testator's  grand-sou,  John  S.  Boylan,  contained  in  the 
8th  clause  of  the  will,  taken  in  connection  with  the  bequest, 
in  trust,  for  him,  to  be  found  in  the  iirst  codicil.  The  gift,  in  the 
will,  is  to  the  testator's  daughter,  Catharine,  of  one  half  of  a 
tract  of  land  in  the  State  of  Mississippi,  many  slaves,  and  ten 
thousand  dollars  in  money,  in  trust,  for  the  said  grandson  du- 
ring his  life,  with  certain  limitations  over.  The  codicil  is  as 
follows:  "I  hereb}'  revoke  so  much  of  my  will  as  disinherits 
my  grandson,  John  S.  J3oylan,  and  do  hereby  give  and  be- 
queath to  ray  son,  John  II.  Boylan,  ten  thousand  dollars,  in 
trusty  for  my  said  grandson,  John  S.  Boylan,  the  interest  to 
be  paid  to  him  anunally  during  his  life,"  with  a  limitation  to 
his  children,  should  he  leave  any,  and  if  not,  then  to  fall  into 


JUNE  TERM,  1863.  369 


Mordecai  v.  Boylan. 


the  residue  of  the  estate.  John  S.  Boylan  claims  under  both 
the  will  and  the  codicil,  while  the  other  devisees  and  legatees 
contend  that  the  bequest,  in  the  codicil,  is  a  substitution  for 
what  is  given  in  the  will,  or  that  at  all  event,  it  cannot  be 
cumulative. 

This  question  has  been  argued  with  much  zeal  and  ability 
by  the  counsel  on  both  sides,  and  after  much  reflection  and 
some  hesitation,  we  have  come  to  the  conclusion  that  the  be- 
quest, in  the  codicil,  is  not  a  revocation  of  the  devise  and  leg- 
acy given  in  the  will,  but  is,  itself,  void  as  having  been  made 
under  an  entire  mistake  of  facts.  In  coming  to  this  conclu- 
sion, we  have  felt  ourselves  at  liberty  to  take  into  considera- 
tion the  parol  testimony,  so  far  as  it  tends  to  show  the  state 
of  the  testator's  family,  the  condition  of  his  estate,  and  his 
feelings  towards  his  grandson,  J.  S.  Boylan,  at  the  time  when 
the  will  and  codicil  were  respectively  executed  ;  see  Bivens  v. 
PUfer,  2  Jones'  436.  The  will  bears  date  18th  day  of  June, 
1858,  while  the  codicil  appears  to  have  been  made  on  2d  day 
of  July,  1860.  In  the  interval  between  those  dates,  the  grand- 
eon,  John  S.  Boylan,  had,  by  his  evil  and  dissipated  conduct, 
60  seriously  incurred  the  displeasure  of  his  grandfather,  that 
he  declared  his  intention  to  disinherit  him.  The  counsel  for 
John  S.  Boylan,  contends  that  the  devise  and  bequest  in  the 
will,  is  not  revoked  by  the  codicil,  because,  though  it  may 
appear  that  the  testator  intended,  at  one  time,  to  revoke  the 
gift  to  his  grandson,  and  thereby  disinherit  him,  yet,  such 
intention  had  never  been  carried  out  in  any  manner  recognized 
by  the  law  as  suflicient  for  that  purpose.  He  then  insists, 
that  the  legacy  in  the  codicil,  is  a  plain  bequest  of  the  sum 
therein  mentioned,  and  there  is  nothing  to  prevent  its  taking 
effect.  On  the  other  hand,  the  counsel  for  the  other  defend- 
ants, argue  that  the  codicil  shows  a  plain  intention,  in  the 
testator,  to  disinherit  his  grandson,  an^  the  great  rule  which 
governs  in  the  construction  of  wills,  to  wit,  that  the  intent 
must  prevail,  no  matter  in  what  language  it  may  be  express- 
ed, requires  the  Court 'to  give  full  effect  to  it.  In  support  of 
tine  argument,  besides  the  other  cases,   that  of  Postmaster 


,370  m  THE  SIJPKEME  COURT. 


Mordecai  v.  Boylan. 

General  v.  Early,  17  Curtis,  86,  decided  by  the  Supreme 
Court  of  United  States,  was  referred  to,  wherein  it  was  held 
that  an  act  of  Congress,  which  gave  jurisdiction  to  a  certain 
court  over  certain  subjects,  concurrent  with  another  court, 
thereby  conferred  a  jurisdiction  upon  the  latter  court,  which 
it  had  never  had  before.  That  may  be  so,  but  the  cases  are 
not  parallel.  If  a  testator  were,  by  a  codicil,  to  bequeath  to  A 
a  thousand  dollars,  that  being  the  sum  which  he  had,  by  his 
will,  given  to  his  brother  B,  then  B  might  claim  a  legacy  of 
that  sum,  though  it  had  not  been  given  to  him  in  the  will. 
The  language,  here  supposed,  would  be  very  much  like  that 
in  the  case  cited  by  the  counsel.  But  the  words  of  the  codi- 
cil, in  the  case  now  before  us,  are  very  different.  The  testa- 
tor says,  "  I  revoke  so  much  of  my  will  as  disinherits  my 
grandson,  John  S.  Boylan,"  and  we  do  notsee  how  this  can  mean 
the  direct  reverse  of  the  plain  import  of  the  language.  If  a 
previous  codicil  had  been  found,  in  which  the  testator  had 
disinherited  his  grandson,  a  revocation  of  that,  b3i  a  second 
codicil,  must  have  had  the  effect  to  restore  the  gift  of  the 
real  and  personal  estate  contained  in  the  will.  We  are  of 
opinion,  then,  that  the  devise  and  bequest  in  the  will,  must 
stand,  but  are  satisfied  that  the  testator  labored  under  a  mis- 
take of  fact,  in  supposing  that  he  had  disinherited  his  grand- 
son, and  that  the  legacy,  given  by  the  codicil,  was  the  conse- 
quence of  that  mistake  ;  considering  the  state  of  alienated 
feelings  in  which  the  parties  stood  towards  each  other  at  the 
time,  and  the  cause  which  had  produced  it,  we  cannot,  for  a 
moment,  suppose  that  the  testator  intended  to  give  his  grand- 
son an  additional  legacy.  That  legacies  given  under  a  false 
impression  as  to  the  existence  or  non-existence  of  a  fact,  will 
be  null  and  void,  is  shown  by  many  oases ;  see  Wms.  on 
Ex'rs.  141,  et  seq. 

Per  Curiam,  Decree  accordingly. 

Pearson,  C.  J.     I  concur  in  the  opinion  filed  by  Judge 
Battle,  with  the  exception  of  that  part  in  reference  to  the 


JHNE  TERM,  1863.  371 


Cook  V.  Ellinorton. 


$10,000,  given  b}"^  the  codicil  to  John  11.  Boy  Ian,  in  trust,  for 
John  S.  Eoylan.  I  am  of  opinioti  that,  according  to  the  rules 
of  construction  adopted  by  the  Court,  see  3liUsaps  v.  Mc- 
Lean, 9th  Jones'  Rep.  (this  term,)  wills  must  be  construed 
by  what  a  testator  does  and  not  what  we  suppose  he  intended 
to  do.  But,  as  Judge  Battle  is  clear  in  his  opinion,  that  the 
language,  in  the  codicil,  does  not  take  effect,  and  as  Judge 
Manly,  who  heard  the  argument,  is  of  the  same  opinion,  I  do 
not  insist  on  my  opinion,  so  far  as  to  dissent ;  particularly,  as 
the  matter  will  not  be  made  a  precedent ;  for,  no  other  case 
of  the  kind,  will,  in  all  human  probability,  occur  again,  and 
1  am  satisfied  the  conclusion  of  Judge  Battle  and' Judge  Man- 
ly is  more  in  accordance  with  the  actual  intention  of  the  tes- 
tator than  that  to  which  I  have  come,  by  a  consideration  of 
the  will  and  codicil,  and  such  evidence  as  the  Court  is  allow- 
ed to  hear. 


JOHN  P.  COOK  and  another  against  JOHN  F.  ELLINGTON,  Admr. 

Whether  the  word,  ''  wish,"  in  a  will,  was  intended  to  create  a  trust,  dis- 
cussed. This  case  was  decided  upon  the  peculiar  phraseology  of  the 
will. 

Cause  removed  frdm  the  Court  of  Equity  of  Wake  county. 

Joseph  F.  Cook,  in  March,  1862,  by  his  last  will  and  testa- 
ment, bequeathed  and  devised  as  follows:  "  Fourthly.  I  give 
and  bequeath  to  my  beloved  wife,  Tranquilla  Cook,  the  fol- 
lowing property  and  money  :  First.  I  give  her  ail  my  negroes 
and  their  increase,  few  or  many,  and  all  the  money  I  may 
have  at  my  death,  and  also  all  that  may  be  due  me  on  bonds 
and  notes,  and  my  wish  is,  that  at  her  deatii,  slie  will  give  the 
one  half  of  all  I  give  her,  and  the  increase  of  my  negroes,  tr\ 
my  brother,  John  P.  Cook,  and  Mary  A.  Terrill. 

"  Fifth.  1  lend  to  my  said  wife,   Tranquilla  Cook,  during 


a72  IN  THE  SUPREME  COURT. 


Cook  V.  Ellington. 


Ler  life-time,  all  of  my  lands,  containing  eighteen  hundred 
and  ninety  one  acres,  more  or  less,  and  at  her  death,  I  give 
fsaid  land  to  my  brother,  John  P.  Cook. 

"  Sixth.  I  give  all  my  stock  of  horses,  mules,  cattle,  hogs, 
sheep,  corn,  fodder,  wheat  and  oats,  that  I  may  have  at  the 
time  of  my  death,  to  my  said  wife,  Tranqnilia  Cook  ;  also,  my 
household  and  kitchen  furniture,  farming  tools,  carriage,, 
blacksmith's  tools,  wagons  and  carts." 

On  the  next  day  he  added  to  his  said  will  this  codicil : 
*'  I  desire  that  my  wife,  Tranqnilia  Cook,  shall  have  all  the 
crop  of  cotton  that  I  may  have  on  hand  at  the  time  of  my 
death,  and  also,  I  desire  that  the  increase  of  the  slaves,  men- 
tioned in  the  4th  clause  of  the  above  will  and  testament,  shall 
be  construed  to  mean  one  half  of  the  increase  as  well  as  the 
other  property,  named  in  the  said  clause  of  said  will  and  tes- 
tament, which  I  wish  my  wife,  Tranqnilia  Cook,  to  give  to  my 
bi'other,  John  P.  Cook,  and  my  sister,  Mary  A.  Terrill,  and  I 
have  to  this  codicil,  which  I  wish  to  be  taken  and  construed 
as  a  part  of  my  will,,  set  my  hand,"  &c.  The  executor,  nam- 
ed in  the  said  will,  having  renounced  the  trust,  the  defendant^ 
Ellington,  was  appointed  administrator,  with  the  will  annex- 
ed, and  Mrs.  Tranqnilia  Cook  having  lately  died  intestate,  the 
defendant  also  administered  on  her  estate,  and  took  into  hh 
possession  the  whole  of  the  property  lately  in  her  possession, 
including  the  whole  of  that  embraced  in  the  4:th  clause  of  the 
said  will. 

This  bill  was  filed  against  him,  praying  for  a  decree,  that 
he  may  be  declared  a  trustee  for  the  plaintiflTs  of  one  half  of 
the  property  and  one  half  the  increase,  mentioned  in  the 
^id  4th  clause  of  the  said  will,  and  that  he  account  and  pay 
over  to  them  their  said  share.  To  this  bill,  the  defendant  de- 
murred, and  the  cause  was  set  down  for  argument  on  the  de- 
murrer and  sent  to  this  Court  by  consent. 

Moo7'e,  for  the  plaiutifis. 

K.  P.  Battle  and  R.  H.  Battle^  Jr.y  for  defendant. 


JUKE  TERM,  1863.  373 


Cook  V.  Ellington. 


Pearson,  C.  J.  In  cases  of  this  kind,  very  little  aid  is  to 
be  derived  from  "  the  books,"  except  in  regard  to  the  general 
principles  which  have  been  established,  for  all  depends  upon 
intention,  and  no  two-  wills  are  ever  precisely  alike :  al- 
though the  meaning  may  be  the  same,  there  will  be  a  difference 
in  tlie  words  used,  and  a  difference  in  the  relations  of  the 
members  of  the  family,  or  other  circumstances,  having  a  ma- 
terial bearing  on  the  (juestion. 

This  case  fulfills,  in  as  complete  a  manner,  as  any  case  can 
do,  all  the  conditions  required  by  the  general  principles* 
which  have  been  established.  If  a  trust  is  not  created  in  this 
case,  the  whole  doctrine  must  be  ignored.  In  support  of  this 
position,  I  refer  to  Jord  v.  J^owler,  3  Beame,  146  ;  see  also 
Alston  V.  Zea,  ante  27.  That  is  considered  as  a  case 
decided  on  two  principles  where,  as  was  remarked  by  Mr. 
Moore,  with  much,  force  and  beauty,  "the  pendulum,  which 
liad  been  vibrating  first  on  one  extreme  and  then  on  the  oth- 
er, had  gradually  assumed  its  right  position." 

In  this  case,  the  subject-matter  of  the  trust  is  certain  ;  the 
objects  of  the  testatoi-'s  bounty  are  plainly  described,  and  Ms 
wis/i  that  one  half  of  the  property,  embraced  in  that  clause  of 
the  will,  should  be  given  to  John  P.  Cook  and  Mary  A.  Ter- 
rill,  by  his  widow  at  her  death,  is  as  plainly  expressed  as  can 
be  done  by  the  English  language.  Here,  then,  we  have  cer- 
tainty as  to  the  subject  matter — ^certainty,  as  to  the  objects  of 
the  bounty,  and  certainty  as  to  the  intention  of  the  testator ;. 
for  the  wish  is  expressed  directly  and  unequivocally  ;  nothing 
is  left  to  conjecture  ;  so,  to  use  a  common  expression,  "  there 
can  be  no  two  ways  about  it."  The  husband  did  intend,  and 
wish,  and  expresa  that  intention,  and  wish  in  his  last  wiH  and 
testament,  that  his  wife,  at  her  death,  should  give  one  half  of 
the  negroes  and  other  property  given  to  her  by  the  fourth 
clause  of  the  will,  to  his  brothe?  and  sister.  The  wish  of  her 
husband,  so  clearly  expressed,  imposes  an  obligation  on  her 
conscience — in  other  words,  creates  a  trust,  which  a  court  of 
equity  will  enforce. 

The  general  frame  of  the  will  tends  to  confirnx  the  correct- 

3 


374  m  THE  SUPREME  COURT. 

Cook  V.  Ellington. 

ness  of  this  canclusion.  The  testator  divides  his  property  in 
to  three  classes,  although  he  gives  all  of  it  to  his  vv^idow- 
1.  His  land,  he  gives  to  her,  for  life,  with  a  remainder  at  her 
death  to  his  brother  John.  2.  His  perishable  property,  he 
gives  to  her  absolutely.  3.  His  negroes  and  bonds,  &c.,  he 
gives  to  her,  subject  to  a  wish,  that  at  her  death,  she  will  give 
one  half  thereof  to  his  brother  John  and  sister  Mary,  show- 
ing, clearly,  that  he  intended  the  negroes  and  bonds  to  be  in 
a  middle  state,  not  given  for  life,  and  still,  not  given  abso- 
lutely, but  given  subject  to  a  trust,  in  favor  of  his  brother  and 
sister,  as  to  one  half,  after  her  death,  in  respect  to  which, 
nothing  was  left  to  her  discretion,  or  her  inclinations,  or  her 
wishes ;  which  disposition,  he  evidently  makes,  under  the  im- 
pression that,  by  having  the  lecfal  estate  subject  to  a  trust,  her 
control  of  the  negroes,  in  respect  to  the  disposal  of  such,  as 
she  chose  to  sell,  and  in  respect  to  the  division,  in  regard  to 
giving  them  in  families,  would  be  less  restricted  than  if  he 
had  given  her  only  a  life-estate,  with  a  remainder  as  to  one 
half  to  his  brother  and  sister. 

But  all  doubts,  as  to  his  intention,  is  removed  by  the  codi- 
cil. By  it,  he  gives  the  crop  of  cotton  on  hand,  at  his  death, 
absolutely  to  his  wife,  classing  it  with  the  horses,  mules,  &c., 
and  he  then  takes  particular  pains  to  remove  a  difficulty, 
which  he  supposes  might  arise  as  to  the  increase  of  the  negroes, 
and  says,  he  does  not  mean  that  his  wife  shall  give  all  of  the 
increase  of  the  negroes  to  his  brother  and  sister,  but  only  the 
one  half  of  the  increase  of  the  negroes ;  treating  it  not  as  a 
matter  left  to  her  discretion  or  inclination,  but  as  the  subject 
of  a  trust,  which  he  had  created  in  favor  of  his  brother  and 
sister,  and  which,  consequently,  he  chose  to  relieve  from  all 
doubt  and  obscurity.  His  particularity,  in  thus  explaining 
his  true  meaning,  relieves  the  subject  of  all  doubt,  and  makes 
this  much  stronger  than  any  case,  to  which  we  have  been  re- 
ferred in  the  books. 

Pee  CuKiAMy  Demurrer  overruled. 


JUNE  TERM,  1863.,  37i 


McLaurin  v.  Fairly. 


DANIEL  McLAURIN  ami  others  against  JOHN   FAIRLY  arid  w/e. 

A  limitation  by  deed  "  to  her  and  her  represetisatives"  can  only  mean  to  hv'r 
executors  and  administrators. 

Where  a  bill  set  forth  that  certain  slaves  were  sold  at  auction  by  an  adminis- 
tratrix, and  a  bill  of  sale  made  to  B,  the  purchaser,  but  it  was  agreed  that 
he  should  hold  the  property,  in  trust,  to  indemnify  himsell  against  certain 
debts,  in  which  he  was  surety  for  the  intestate,  and  he  paid  no  money ; 
that  the  debts  remained  unpaid  for  nine  years,  and  that  in  the  meantime  B 
married  the  administratrix,  and  took  with  her  the  slaves  in  question,  it  was 
held  that  these  allegations  were  sufficient  to  make  out  a  case  against  B  as 
succeeding  to  the  trust  his  wife  was  under  to  distiibute,  and  having  tlx- 
legdl  estate  by  the  bill  of  sale,  the  property  could  be  followed  in  his  hands, 
and  heM  further,  that  the  statute  of  limitations  did  not  run  against  the  dis- 
tributees. 

<Jau8E  removed  from  the  Court  of  Equity  of  Richmond. 

Lanchlin  McLaurin,  the  father  of  the   plaintiff,  was  indebt 
ed  to  James  Patterson  in  the  sum  of  §700,  and  to  J.  C,  Mc- 
Eachin  in  $1400,  for  wliich  his  notes  with  the  defendant,  and 
his  brother,    J.   C.  McLaurin,  as  his  sureties  ;  said  Lauclilin 
died  intestate,  in  the  year  1843,  and  his  widow,  the  defeudauu 
Nancv,  (now)  Fairly,  the  mother  of  the  plaintilfs,  administer- 
ed on  his  estate.     After  their  father's  death  a  new  note  wa^ 
given  to  Patterson  with  defendant,  John  Fairly,  as  principal, 
and  John  C.  Laurin  and  defendant,  A'ancy,  as   his  sureties, 
And  to  McEachin,  wiili  defendant,  jS'^ancy,  ab  principal,  and 
John  P^iirly  and  J.   C.  McLaurin  as  sureties.     An  order  of 
court  was  obtained   by  tlie  administratiix  to   sell    the   slaves 
belonging  to  the  estate  for  the  payment  of  the  debts,  and  an 
agreement  was  entered   into  between  plaintiffs'  mother,  the 
administratrix,  and  said  Fairly,  that  he  sliould    bid   off  tlu^  \ 
slaves  for  the  beneiit  of  the  widow  and  children  of  the  said 
Lauchlin,  and  should  hold  them,  as  plaintiffs  say,    to  indem- 
nify himself  for,  and  on  account  of  his  liabililiesin  the  two  notes 
aforesaid,  and  after  these  were  paid  off,  he  would  reconvey  the 
said  slaves  to  the  widow  and  children   of  the  said  Lanchlin. 
lie  did  bid  off  the  slaves,  six  in  number,  for  the  sum  of  $1459, 
and  having  received  a  bill  of  sale  from  the  administratrix  ;  he 


376  IN  THE  SUPREME  COURT. 


McLaurin  v.  Fairly. 

at  the  same  time  executed  a  deed  as  lullows :  "  Wliereas,  1 
did  on  12th  of  Feb.,  1844,  receive  from  Nancy  McLaurin,  ad- 
ministratrix of  Lauchlin  McLaurin,  deceased,  the  following 
negroes,  (naming  them,)  for  the  sum  of  $1459 ;  now,  if  the 
said  Nancy,  or  her  representatives,  shall  pay  two  certain 
notes,  one  due  James  Patterson,  where  I  am  maker  and  J.  C. 
McLaurin  and  Nancy  McLaurin  suret}' ;  the  other  note 
payable  to  James  C.  McEachin,  Nancy  McLaurin  maker 
and  J.  C.  McLaurin  and  myself  securities,  M'ith  all  interest, 
costs  and  damages  that  may  be  accumulated  on  said  notes,  I, 
the  said  John  Fairly,  bind  myself,  my  heirs  and  assigns,  to 
uuike  to  her  or  her  representatives  a  title  to  the  above  mention- 
ed negroes."  Fairly  paid  no  money  on  the  executing  of  the 
bill  of  sale  to  him,  and  did  not  take  the  slaves  into  his  posses- 
sion, but  left  them  with  the  said  Nancy  until  he  married  her. 
the  said  IfJ^aucy,  in  1852,  when  she,  with  the  slaves,  removed 
to  his  house,  where  they  have  been  ever  since.  The  bill  al- 
leges, that  these  two  notes  were  not  paid  off  by  the  defend- 
ant, Fairly,  until  after  he  married  the  widow  in  1852,  to  wit, 
in  1853,  and  that  at  this  time  the  slaves  had  increased  to  the 
number  of  fourteen,  and  were  worth  three  times  as  much  as 
the  defendant  paid  on  the  two  notes,  which  was  $3200. 

When  the  said  notes  were  paid  off  none  of  the  plaintitls 
were  of  age;  the  plaintiff,  Daniel,  arrived  at  full  age  April, 
1853,  Mary  Ann,  in  1858,  and  tlie  other  two  jdaintiffs,  Cath- 
arine and  Margaret,  are  still  under  age.  They  aver  that  they 
never  were  informed  b}'  the  defendant  Jolm,  or  tiioir  mother, 
the  other  defendant,  that  Fairly  intended  to  insist  on  an  absolute 
estate  in  said  slaves  until  a  few  weeks  before  this  bill  was 
tiled.  The  prayer  is  for  a  distribution  of  the  slaves  and  an 
account  of  hires,  &c. 

The  answer  of  defendant,  John  Fairly,  says,  that  at  the 
time  he  bid  off  the  slaves,  in  question,  tiiere  was  no  contract 
between  him  and  tiie  administratrix  as  to  bidding  them  off 
in  trust  for  her  and  her  children,  but  that  knowing  his  liabili- 
ty on  the  two  notes,  and  being  the  only  responsible  person, 
he  run  up  the  property  to  make  it  bring  its  utmost  value,  and 


JUNE  TEUM    186S.  377 


McLaurin  v.  Fairly. 


that  he  thinks  it  did  bring  its  full  value ;  that  after  the  sale, 
for  the  ease  and  accommodation  of  the  family,  he  entered  in- 
to the  deed  set  ont  in  plaintifi^'  bill.  He  admits  that  ho  paid 
no  money  at  the  time  of  the  execution  of  the  bill  of  sale,  but 
he  says  he  interposed  with  his  credit,  and  procured  for  the 
estate  a  long  indulgence,  whicli  it  otherwise  could  not  have  ob- 
tained ;  that  afterwards,  having  been  urged  by  the  creditors, 
he  paid  the  debts,  and  then  considered  the  negroes  his.  He 
also  relies  upon  the  statute  of  limitations. 

There  was  replication  and  proofs,  and  the  cause  being  set 
down  for  hearing,  was  sent  to  this  Court. 

Strange  and  Buxton,  for  the  plaintiffs. 
Ashe  and  /Sliej?herd,  for  the  defendants. 

Pearson,  C.  J.  The  words,  "  her  representatives,"  in  the 
deed  executed  by  the  defendant,  Fairly,  to  Nancy  McLaurin, 
tiie  other  defendant,  (now  his  wife,)  dated  12th  of  February, 
1844,  cannot  be  made  to  mean  he?'  children,  and  can  have  no 
other  meaning  tlian  "  her  executors  or  administrators."  It  is 
true,  by  this  construction,  the  words  have  no  legal  effect,  and 
must  be  treated  as  surplusage.  So,  that  the  deed  will  oper- 
ate precisely  as  if  these  words  had  not  been  inserted,  but  the 
Court  is  bound  by  the  words  used  in  tlic  instrument,  and  can- 
not substitute  other  words,  although  it  may  be  highly  proba- 
ble that  the  latter  would  express  the  actual  intention  of  the 
parties ;  for  the  province  of  the  Court  is  to  construe  the  deed 
made  by  the  parties,  and  not  to  make  a  deed  for  them.  From 
the  relation  of  Mrs.  Fairly  to  tlie  plaintiffs,  and  her  duty  to 
them,  as  distributees  of  the  intestate,  it  is  probable,  nay,  al- 
most certain,  that  her  intention  would  have  been  expressed 
by  these  words,  *'  Now,  if  the  said  Nancy  McLaurin,  or  t/t^se 
she  represents,  shall  pay  two  certain  notes,*'  &c.  ;  but  the 
words  used  are,  "  her  representatives,"  and  the  former  can- 
not be  substituted  in  their  stead.  Where  the  words  used  are 
susceptible  of  two  meanings,  and  fi-om  the  relation  of  the  par- 
ties—the object  in  view,  and  other  matters,  which  the  Court 


378  IN  THE  SUPREME  COURT. 


McLaurin  v.  Fairly. 


is  at  liberty  to  call  to  its  aid  in  the  constrnction  of  instruments, 
the  sense  in  which  the  parties  intended  to  use  the  words  is 
shown,  the  Court  will  adopt  the  construction,  which  w'ill  give 
effect  to  the  intention,  although  it  may  not  be  the  most  obvi- 
ous one — or  that  which,  apart  from  the  intention,  would  have, 
naturally,  suggested  itself;  indeed,  so  solicitous  are  the  courts 
to  carry  out  the  intention,  whenever  the  words  used  will  al- 
low it,  that  in  many  instances,  sentences  will  be  transposed, 
rules  of  grammar  violated,  and  the  ordinary  import  of  words 
departed  from  ;  many  illustrations  will  suggest  themselves  to 
every  one  familiar  with  "  the  books."  This  will  occur  to  any 
one  who  has  read  Blackstone ;  A  makes  a  feofment  to  B,  for 
life.  Who's  life  ?  It  may  be  for  the  life  of  A  or  B  ;  the  or- 
dinary construction  is,  that  it  is  for  the  life  of  B,  as  it  is  most 
beneficial  to  him,  and  deeds  are  to  be  taken  most  strongly 
against  the  maker,  but  if  it  appear  by  the  deed  itself,  or  by 
the  conveyance,  under  which  he  derives  title,  that  A  had  only 
an  estate  for  his  own  life,  then  B  will  take  an  estate  for  the 
life  of  A,  for  otherwise  the  conveyance  would  be  wrongful, 
and  the  estate  would  be  forfeited,  if  A  should  make  a  differ- 
ent estate  from  that  which  he  holds,  hence,  there  is  a  pre- 
sumption that  the  intention  was  to  make  an  estate  for  the 
life  of  A,  and  the  Court  will  adopt  that  construction.  If  the 
feofment  had  been  to  B  for  his  ovm-  life^  there  would  have 
been  no  room  lor  constrnction  ;  on  the  same  principle,  in  our 
case,  there  is  no  room  for  construction. 

There  is,  however,  another  view  of  tlie  case  made  by  the 
allegations  of  the  bill,  on  which  the  plaintiffs  are  entitled  to  a 
<iecree  :  i.  e.,  as  administratrix,  Mrs.  McLaurin  held  the  slaves 
in  trust  for  herself  and  her  children,  the  distributees  of  her 
intestate,  subject  to  the  payment  of  debts ;  by  the  arrange- 
ment which  she  made  with  the  defendant,  Fairly,  for  the  pur- 
pose of  indemnifjn'ng  him,  as  security,  on  the  two  notes,  and 
saving  to  her  the  right  to  redeem  the  slaves,  which  was  car- 
ried into  effect  by  offering  them  for  sale,  and  Fairly  bidding 
them  off,  and  taking  a  bill  of  sale  'imtJiout  jpaymg  any  consid- 
eration^ and  executing  the  deed  to  Mrs.  McLaurin,  the  legal 


JUNE  TERM,  1863.  37» 


McLaurin  v.  Fairly. 


title  vested  in  Fairly,  but  he  took  subject  to  the  same  trusts 
that  attached  to  the  property  in  the  hands  of  Mrs.  Mc- 
Laurin, of  which  he  had  full  notice,  as  appears  on  the  face  of 
the  deed ;  consequently,  the  cestuis  qui  trust  have  a  right  to 
follow  the  fund  in  his  hands,  and  convert  him  into  a  trustee, 
subject  only  to  his  right  to  be  indemnified  as  the  surety  of 
their  father,  which  they  offer  to  do.  The  suggestion,  tliat 
this  arrangement  was  made  between  Fairly  and  Mrs.  Mc- 
Lauriu,*with  an  intent  to  defraud  the  other  creditors  of  her 
intestate,  and,  therefore,  a  court  of  equity  ought  not  to  carry 
it  out,  comes  with  an  ill  grace  from  them,  and  is  no  bar  to 
the  equity  of  the  plaintiffs,  because  there  is  no  proof  of  any  debt 
of  the  intestate  remaining  unsatisfied,  and  there  is  no  ground 
on  which  the  plaintiffs  can  lose  their  equitable  interest,  be- 
cause of  a  supposed  fraud  on  the  part  of  their  trustee,  in 
which  they  did  not  participate. 

There  is  no  bar  b}'  the  statute  of  limitations  or  lapse  of 
time :  No  time  is  fixed  for  the  payment  of  the  two  notes ; 
Fairly  married  the  trustee,  whose  duty  it  was  to  act  for,  and 
take  care  of  the  interests  of  the  plaintiffs  before  he  paid  the 
notes,  to  say  nothing  of  the  fact,  that  all  of  the  infants  wero 
nnder  the  disabilit}'  of  infancy  at  the  first  of  the  transaction, 
and  some  of  them  remain  so  still. 

The  plaintiffs  are  entitled  to  partition,  and  for  an  account 
of  the  hires  subject  to  the  expenses  and  other  proper  allow- 
ances. 

Per  Curiam,  Decree  accordingly. 


380  IN  THE  SUPREME  COURT. 


Worth  V.  Gray. 


JONATHAN  WORTH,  Aihn'r.,  against   ALEX.  GRAY  and  others. 

Where  certain  matters  have  been  set  forth  in  the  answer,  by  the  way  of  plea, 
and  there  has  been  replication  to  the  answer,  it  is  too  late  to  except  to  the 
answer  for  insufficiency. 

Appkal  from  the  Court  of  Equity  of  Randolph  county. 

The  plaintiff  excepted  to  the  defendants'  answer  on  account 
of  insufficiency.  The  exceptions  were  over-ruled,  and  plain- 
tiff appealed  to  this  Court. 

Grahatn,  for  tlie  plaintiff. 
Moi'eJiead^  for  the  defendants. 

Pkahson,  C.  J.  If  replication  be  taken  to  a  plea,  in  a  suit 
in  equity,  the  sufficiency  of  the  plea,  in  respect  to  the  law,  is 
admitted.  To  take  issue  on  the  matters  of  law,  presented  by 
a  plea,  it  should  be  set  down  for  argument.  In  this  case,  the 
plaintiff  having  taken  replication,  the  only  matter  open  is  the 
truth  of  the  allegations  of  the  plea.  It  follows  that  no  excep- 
tion can  be  sustained,  in  respect  to  those  parts  of  the  bill, 
which  are  covered  by  the  plea. 

We  have  considered  the  exceptions,  in  respect  to  the  other 
parts  of  the  bill,  and  are  of  opinion  that  the  answer  is  suffi- 
ciently responsive,  and  as  full  as  could  be  expected  or  requir- 
ed in  regard  to  transactions  of  such  long  standing.  The  ir- 
regularity of  filing  two  answers,  wo  think,  is  fully  explained. 
The  first  answer  is  incorporated  as  a  part  of  the  second,  anil 
tlie  plaintiff' may  have  the  benefit  of  both. 

]*i:r  Curiam,  Decretal  order  affirmed. 


« 

JITNE  TERM,  186B.  381 

Hackney  v.  Griffin. 


JOSHUA  HACKNEY   against   CHARLES  GRIFFIN,   Ad7nimsirator* 

A  testator,  in  contemplation  of  a  certain  contingency,  provided  that,  there- 
upon an  estate,  consisting  of  realty  and  personalty,  should  be  divided  int» 
four  parts,  and  distributed  as  follows :  One  each  to  a  brother  and  a  sister, 
and  thdr  heirs :"  "  One  part  to  ray  other  lawful  heirs,  and  the  fourth  part 
to  foreign  missions,  to  be  paid  over  to  the  treasurer  of  that  board,  to  be  ap- 
propriated to  that  purpose."  By  another  clause,  he  provided  that — "  If 
there  should  be  any  property,  either  real  or  personal,  not  given  away  here- 
tofore, it  is  to  be  equally  divided  between  all  my  lawful  heirs." 

The  brother  and  sister  survived  the, testator,  but  died  before  the  happening  ot 
the  event  contemplated.     Upon  the  happening  of  that  event : 

Held  (1)  that  the  two  ^ares,  first  mentioned,  descended — the  realty  to  the 
heirs,  and  the  personalty  to  the  personal  representatives  of  the  brother  and 
sister  respectively. 

i'2)  That  the  third  share  belonged  to  such  as  were  heirs  of  the  testator  as  to 
realty,  excluding  the  heirs  of  the  brother  and  sister  first  mentioned. 

(3)  That  the  share  devised  to  foreign  missions,  having  lapsed  on  account  of 
the  ambiguity  of  the  clause  which  contained  it,  fell  into  the  residue,  ami 
descended  upon  all  those  who  were  heirs  of  the  testator  as  to  realty. 

Oausk  removed  from  the  Court  of  Equity  of  Chatham  county. 

This  bill  was  brought  for  a  partition  of  real  and  jjersonal 
estate,  of  Avhich  the  plaintiffs  allege  they,  with  the  defendants, 
were  jointly  seized  under  the  will  of  Joshua  Williams,  of 
which  the  following  is  the  material  clause : 

"  3d,  I  give  unto  my  beloved  daughter,  Sarah  Ann  K.  Wil- 
liams, all  the  residue  of  my  propert)',  both  real  and  ])ersonal, 
<not  given  to  my  wife,)  to  have  and  to  hold  to  her  and  her 
heirs  forever.  Nevertheless,  if  my  daughter  should  die,  leav- 
ing no  legal  heirs  of  her  body,  then,  and  in  that  case,  my  will 
is,  that  her  estate,  both  real  and  personal,  shall  be  divided 
into  four  parts.  One  fourth  part  to  my  beloved  sister,  Eliza- 
beth Hackney,  and  her  heirs  forever.  One  fourth  part  to  my 
beloved  brother,  Anderson  Williams,  and  his  heirs  forever. 
One  fourth  part  to  my  other  lawful  heirs.  One  fourth  i)art  to 
foreign  missions,  to  be  paid  over  to  the  treasurer  of  that 
board,  to  be  appropriated  to  that  ])urpose.     If  there  should  be 

*  This  cause  was  decided  at  a  former  term,  but  was  not  reported  at  the  time 
in  account  of  a  mistake  m  the  facts,  which  required  a  rehearing. 


^2  m  THE  SUPREME  COURT. 


Hackney  v.  Griffin. 

any  pioperty,  either  real  or  personal,  'not  given  away  hereto- 
fore in  this  will,  it  is  then,  to  he  equally  divided  between  all 
my  legal  heirs." 
«    The  will  was  dated  and  the  testator  died  in  1848. 

Sarc'vh  Ann  E.  Williams  died  in  July,  1851,  without  issue, 
and  Sims  Upchurch  administered  on  her  estate. 

Anderson  Williams  having  survived  the  testator,  died  ii? 
the  life-time  of  Sarah  Ann  E.  Williams  and  John  Hackney, 
his  administrator  and  his  children  are  plaintiffs.  Elizabeth 
Hackney  survived  the  testator,  but  died  in  the  lifetime  of 
said  Sarah  Ann  E,  Williams.  Her  Administrator  and  chil- 
dren and  grand-children  are  plaintiffs.      f 

Besides  the  sister  and  brother,  mentioned  in  the  will,  Josh- 
aa  Williams  left  two  sisters,  Dolly  Bynum  and  Dorcas  Ne- 
ville, and  a  brother,  Nimrod  Williams,  who  are  plaintiffs.  He 
had  also  two  brothers,  Joseph  and  Henry,  and  a  sister,  Sarah, 
who  died  in  his  life-time,  and  whose  children  are  plaintiffs. 
The  children  and  grand-children  of  the  brothers  and  sisters 
deceased,  being  his  sole  heirs-at-law,  claim  to  have  divided 
among  tliem  so  much  of  his  real  and  personal  estate  as  is  nam- 
ed in  the  third  article  of  the  said  will.  The  children  of  bro- 
thers and  sisters,  together  with  the  widow  of  the  testator, 
claim  to  be  entitled  under  the  expressions,  "  lawful  heirs"  and 
"  legal  heirs,"  to  whatever  of  the  personal  estate  of  the  de- 
ceased, is  contained  in  the  said  article,  and  that  they  are  also 
entitled  to  so  much  of  the  property  as  was  intended  to  b« 
conveyed  to  foreign  missions. 

Phillips,  for  tiie  plaintiffs. 
Manly,  for  the  defendant. 

Pkarson,  C.  J.  Joshua  Williams  died  in  1848,  leaving  a 
will,  by  which,  after  providing  for  his  wife,  he  gives  to  his 
daughter,  Ann,  (who  was  their  only  child,)  all  the  residue  of 
his  property,  both  7'eal  and  perso7ial ;  but  if  she  should  die, 
leaving  no  child  living  at  her  death,  "then  her  estate,  both 
real  and  personal,  to  be  divided  into  four  parts.     I  give  one 


JUNE  TERM,  1863.  385 


Hackney  v.  Griffin. 


part  to  my  sister,  Elizabeth  Hackney,  and  her  heirs  forever  ; 
one  part  to  my  bi-other,  Anderson,  and  liis  heirs  forever  ; 
one  part  to  my  other  lawful  heirs,  and  the  other  fourth  part 
tj)  foreign  missions,  to  be  j^id  over  to  t}^  treasurer  of  that 
board,  to  be  appropriated  to  that  purpose'^  ^  If  there 'should 
be  any  pro-perty,  cither  real  or  personal,  not  given  away  here- 
tofore, it  is  to  be  equally  divide'd  between  all  my  leg-al  heirs." 

Anne,  the  only  child  of  the  testator,  died  intestate,  and 
without  leaving  a  child,  in  the  year  1851.  Elizabeth  Hack- 
ney and  Anderson  Williams,  outlived  the  testator,  but  died 
before  his  daughter,  Anne.  Dolly  Bynum,  Dorcas  Neville, 
and  Nimrod  Williams,  are  the  sisters  and  brother  of  the  tes- 
tator, and  the  several  other  pbintiffs  and  defendants  are  the 
children  of  deceased  brothers  and  sisters,  who-  died  in  his  life- 
time. 

Elizabeth  Hackney  and  Anderson  Williams,  were  each  en- 
titled to  one  fourth  of  the  real  and  personal  property,  given 
to  Anne,  upon  the  contingency  of  her  death  ''without  leaving 
legal  heirs  of  her  body." 

It  i^  settled,  that  when  the  person  is  known,  but  the  event 
is  uncertain,  a  contingent  remainder,  conditional  limitation 
or  executoi7  devise  is  transmissible  by  descent,  and  such  an 
interest  in  personal  property  passes  by  succession  to  the  per- 
sonal representative.  (See  Fca^^ne.)  So,  although  Elizabeth 
Hackney  and  Anderson  Williams  died  before  the  contingen- 
cy happened,  the  interest  of  each,  respectively,  in  the  real 
estate,  was  transmitted  by  descent  to  their  heirs,  and  their  in- 
terest in  the  personal  estate,  passed  to  their  respective  person- 
al representatives. 

One  other  fourth  part  of  the  real  and  personal  estate  is  giv- 
en to  the  testator's  "  other  lawful  heirs^ 

When  used  in  a  limitation  over,  of  personal  estate,  the 
word,  "  heirs,"  unexplained  and  standing  by  itself,  is  held  to 
mean  "  distributees,"  or  the  persons  entitled  under  the  statute 
of  distributions ;  but  where  a  fund^  composed  of  both  real 
and  personal  estate,  is  given  over  to  the  testator's  "heirs,^'^ 
aud  it  is  apparent  that  he  intends  the  sanae  persons  to  take 


H84  IN  THE  SUPREME  GOURl. 

Hackaey  v.  GrifiBn. 

both  estates,  it  is  settled,  that  inasmuch  as  by  force  of  the 
word,  "  heirs,"  in  its  appropriate  and  technical  sense,  the 
heir-at-law  is  entitled  to  the  real  estate,  he  is  also  entitled  to 
the  personal  estate,^becanse  of  the  intention  that  both  should 
go  together  ;  2  Jarman  on  "Wills,  22-'3,  and  notes ;  4  Kent,, 
537,  note  ;  Gwynn  v.  Murdoch^  14  Vesey,  488  \  McCabe  v. 
Spruill,  1  Dev.  Eq.  189.  It  follows  that  this  fourth  part, 
both  of  the  personal  and  real  estate,  upon  the  death  of  the 
testator's  daughter,  vested  in  those  persons  who  were  then  his 
lieirs-at-law,  to  wit :  his  sisters  and  brother,^  and  the  children, 
of  his  deceased  brothers  and  sisters,  who  bring  theraselve&up, 
bv  the  right  of  representation,  and  take  the  shares,  their  pa- 
rents, if  alive,  would  have  taken.  But  inasmuch  as,  by  the 
word  "  other,"  in  direct  reference  to  Elizabeth  Hackney  and; 
Anderson  Williams,  the  testator  expresses  his  intention  that 
they  (to  each  of  whom  he  had  given  one  fourth  part)  should 
be  excluded  fiom  this  fourth  part,  it  follows  that  their  chil- 
dren, who  can  only  bring  themselves  up  to  an  equality  with 
their  aunts  and  uncle  by  representing  their  parents,  have  no 
right  to  any  part  of  this  fourth. 

The  other  fourth  part  of  the  real  and  personal  estate  is  giv- 
en over  to  "  foreign  missions,  to  be  paid  to  the  treasurer  of 
tliat  board,  and  to  be  appropriated  to  that  purpose."  It  is 
conceded,  that  these  words  are  too  vague  and  uncertain  to 
vest  any  interest  in  any  person  or  corporation.  So  this  fourth 
part  falls  into  the  residuum,  and  passes  to  the  "  legal  heirs"  of 
the  testator.  The  persons  entitled  to  taike,  under  the  word 
heirs,  have  been  already  indicated.  There  being  no  word  of 
exclusion,  the  children  of  Elizabeth  Hackney  and  of  Ander- 
son Williams,  represent  their  parents,  and  take  a  share  of  this 
fourth  part.  It  is  settled,  that  the  eifect  of  the  word  "  equally,' "^ 
is  to  require  the  distribution  to  be  made  j?6/'  capita :  Freeman 
v.  Knight,  2  Ired.  Eq.  T6,  and  as  is  said  in  that  case,  "  what- 
ever might  be  thought  of  these  distinctions,  were  the  matter 
now  a  new  one,  to  disregard  them,  at  this  day,  would  be 
quieta  mcyverey 

Per  Curiam,  Decree  accordingly^ 


TO  VOL.  6,  JONES'  EQUITY. 


ABATEMENT— PLEA  IX. 
Vide  JiusuicTioN,  4,  5. 

ABATEMENT  OF  LEGACIES. 
Vide  Specikic  Ciiauge,  Sec,  2,  3. 

ACCOUNT— BAR  TO. 

Vide  Setti-emext,  &"c. 

ADEMPTION  OF  A  LEGACY. 

1.  The  general  rule  i?,  that  where  a  testator,  after  making  his  will,  sells  the 
property  given,  the  legacy  is  adeemed.  But  where  the  j^roceeds  of  the  saU 
of  property  are  given  to  children,  and  the  will  intimates  that  the  sale  is  to 
be  made  by  the  testator  himself  who  does  make  it,  and  no  substitution  or 
equivalent  is  made  for  such  legaey,  and  the  proceeds  are  reinvested,  and 
are  traceable,  it  was  held  not  to  be  a  case  of  the  ademption  of  the  legacy 
by  sale  of  the  property.     Nooe  v.  Vannoy,  185. 

'1.  Where  an  intended  legacy  of  a  tract  of  land  was  sold  by  the  testator,  and 
a  bond  given  by  hun  to  make  title,  which,  however,  was  not  done  m  his 
,  life-time,  it  was  held  that  the  intended  legatee  had  no  claim  upon  the  pro- 
ceeds of  a  note  taken  by  the  testator  for  the  purchase-moDey  of  the  land. 
Chambers  v.  Kerns,  280. 

ADMINISTRATOR. 

Vide  Following  money,  2. 

ADMINISTRATOR  DURANTE  MINORITATE. 

An  administrator  durante  minoritate  is  liable  for  a  devastavit  to  the  execu- 
tor, who  qualifies  after  coming  of  age,  and  if  such  executor  abstain  for 
ten  years  from  bringing  suit,  his  cause  of  action  is  presumed  to  have  been 
satisfied,  released  or  abandoned.  So  that  persons  having  a  contingent 
interest  in  remainder,  which  is  injured  by  such  devastavit,  must  look  to 
the  c.Kccutor  and  not  to  the  administrator  durante  minoritate,  or  tl)« 
sureties  on  his  administration  bond.     Ilerndtm  v.  Pratt,  327. 

Ag'eNT— COMPENSATION  TO. 

Where  one,  on  the  footing  of  a  friend,  neighbor  and  relative,  undertook  %o 


186  INDEX. 

manage  the  moneyed  affairs  of  an  old  lady,  without  any  stipulation  as  to 
compensation,  and  without  intending  to  make  any  charge,  it  was  held 
that  he  was  not  entitled,  after  her  death  to  claim  a  remuneration  for  his 
services,  and  that  his  being  held  to  a  strict  account  by  her  administrator, 
did  not  vary  the  case.     Sill  v.  Williams,  242. 

ALIMONY. 

There  are  circumstances,  under  which  the  striking  of  his  wife  with  a  horse- 
whip, or  switch,  by  a  husband,  and  inflicting  bruises,  would  not  be  the 
ground  of  a  divorce.  Where,  therefore,  such  violence  was  made  tho 
ground  of  an  application  for  a  divorce,  it  was  held  to  be  necessary,  that 
the  bill,  or  petition,  should  set  forth  particularly  and  specially,  what  she 
did  and  said  immediately  prior  to,  and  during  such  use  of  force.  Joyner 
V.  Joyner,  322. 

ALTERNATIVE  RELIEJb'. 

Where  an  obligee  in  a  bond  to  make  title,  files  a  bill  for  a  specific  perform- 
ance of  the  contract,  and  claims  to  have  the  land  conveyed  according  lo 
certain  boundaries  which  he  alleges  were  meant  by  the  contract,  and  the 
defendant  in  his  answer  denies  that  such  boundaries  w^ere  meant,  and 
Kets  out  others  which  he  alleges  were  intended,  the  plaintiff,  not  having 
in  the  pleadings  aveired  his  willingness  to  accept  a  deed  according  to 
tlie  lines  as  the  defendant  says  he  understood  they  were  to  be  run.  aud 
not  having  offered  to  release  him  against  any  further  claim,  is  not  enti- 
tled to  a  decree  according  to  the  allegations  of  the  defendant.  Richardswi 
y.   Godwiti,  229. 

AMENDMENT. 

Vide  Pkactioe,  2,  4,  5. 

ANSWER— EFFECT  OF. 

An  answer,  when  directly  responsive  to  the  allegations  of  the  bill,  or  to  an 
interrogatory  put  in  the  bill,  or  on  a  special  examination,  is  to  be  taken 
as  true,  unless  it  be  proved  not  to  be  true  by  the  oath  of  two  witnesses, 
or  of  one  witness  with  corroborating  circumstances  equal  to  the  force  of 
another  witness,  or  by  some  other  kind  of  evidence  which  is  entitled  to 
the  weight  of  two  witnesses  on  oath.  Hill  v.  Williams,  242. 
Vide  lNJ0NcnoN,  11,  12,  13,  14,  15. 

ATTACHMENT. 

A  distributive  share  in  the  hands  of  an  administrator,  due  the  wife  of  a 
non-resident  debtor,  cannot  be  subjected  to  the  payment  of  the  hus- 
band's debts  in  this  State,  by  means  of  an  attachment,  in  equity,  under 
the  statute,  Rev.  Code,  ch.  7,  sec.  20.     McLean  v.  McPhaul,  15. 

Vide  Fraudulent  Convevancb. 

AVOIDANCE— MATTER  IN. 
Vide  Injunction,  15. 


INDEX.  387 

APPEAL. 

Vide  Clerk  and  Mastbb. 

ASSETS. 
Vide  FoLL-oWiNO  monbt,  2. 

AWARD. 

Vide  Specific  Pkrformanok,  2. 

BOND  TO  MAKE  TITLE. 
Vide  Injunction,  9  ;  Specific  Perfokmance,  3. 

BOND  TAKEN  BY  ORDER  OF  COURT. 

Where  a  bond  was  taken  from  a  trustee  under  an  order  of  the  Court  of 
Equity,  payable  to  the  clerk  and  master,  conditioned  for  the  performanoe 
of  the  trust,  it  was  held  that  the  representative  of  the  cestui  qui  irtuthad 
no  right  to  sue  on  such  bond  without  the  leave  of  the  Court  of  Equity, 
and  that  where  such  unauthorised  suit  had  been  begun,  the  Court  would 
enjoin  it  until  an  account  of  the  trust  could  be  taken.  J^loyd  v  OiUia'Tn, 
183. 

BOND  OF  INDEMNITY. 

A  bond  to  indemnify  the  surety  of  A  against  all  notes,  bonds,  Ac.,  signer 
and  entered  into  for  B,  extends  to  notes,  bond?,  &c.,  signed  and  en^erec 
into  for  B  &  Co.     Quickel  v.  Henderson^  286. 

BONDS,  NOTES,  &c.— WHETHER  TO  BE  SOLD. 

Where  a  testator  bequeathed  certain  of  his  property,  specifically,  and  ihf.u 
provided,  '•  the  balance  of  my  estate  to  be  sold  and  the  proceeds  divided 
among  ray  children  hereinafter  named,"  it  was  held  that  the  bonds,  notes 
and  accounts  due  the  testator,  and  the  cash  on  hand,  were  not  crabrart" J 
by  this  clause.     Scales  v.  Scales,  163. 

CLERK  AND  MASTER. 

A  clerk  and  master  in  equity  is  no  such  party  to  a  suit  pending  in  his  court 
as  to  entitle  him,  under  the  4th  chapter,  23rd  section  of  the  Rev.  (l^odc. 
to  appeal  from  an  interlocutory  order  appointing  another  than  hinisoll  a 
commissioner  to  sell  real  estate.     Green  v.  Harrison,  253. 

COLLATERALS— REPRESENTATION  AMONG. 

Vide  DiSTRIBDTEES. 

CONFIDENTIAL  AGENT. 
Vide  Inj0nction,  6. 

CONSIDERATION. 

Vide  Deed— Reformation  of,  1,  2. 

CONTRACTOR  TO  DO  WORK. 
Vide  Injunction,  8. 


388  IKDEX. 

CONTEMPT  OF  COURT. 

Where  a  bill  was  filed  for  the  settlement  of  co-partnership  dealings,  and 
there  is  a  prayer  for  an  injunction  against  a  bond  given  on  a  partial  set- 
element  of  the  business  between  the  partners,  but  no  injunction  was  is- 
sued, it  was  held  that  the  obligor,  in  said  bond,  was  not  in  contempt  of 
the  court  of  equity  in  refusing  to  submit  to  a  judgment  on  tlie  bond  in  a 
court  of  law.     Long  v.  Clay.  350. 

CONTINGENT  REMAINDER. 

1.  A  bequest  of  slaves  to  one,  for  life,  with  a  limitation  over  to  his  or  her 
children  equally  to  be  divided,  is  not  controlled  by  the  rule  in  Shelly's  case, 
but  confines  the  interest  of  the  first  taker  to  his  or  her  life.  Chambers  v, 
Payne,  276. 

2.  Where  children  take  as  a  class  at  the  expiration  of  a  life-estate,  each  child 
takes  a  vested  interest  at  its  birth,  subject  to  be  partially  divested  in  favor 
of  the  other  children  of  the  class  as  they  are  born,  and  upon  the  death  of 
one  of  the  children  during  the  existence  of  the  life-estate,  his  or  her  inter- 
est goes  to  his  or  her  representative,  and  not  to  ulterior  limitees  dependant 
on  the  first  taker's  dying  without  issue.     Ibid. 

o.  The  word  "  when,"  hke  the  words  "  at"  and  "  if"  applied  to  a  legacy  of 
personalty,  makes  the  gift  contingent ;  but  the  superaddition  of  the  words, 
"equally  to  be  divided,"  (where  there  are  several  legatees,)  shows  that  the 
words,  when,  &c.,  were  only  used  to  designate  the  time  when  the  enjoy- 
ment of  the  legacy  was  to  commence,  and  would  not  prevent  it  from  vest- 
ing.    Sims  v.  Smith,  347. 

CONTINGENT  INTEREST. 
Vide  Administrator  durante  minoritate  ;  Death  of  slaves  sued  for. 

CONTINUANCE. 
Vide  Practice,  8. 

CONTRIBUTION. 

Vide  Copartnership  funds. 

CONTRACT— BILL  TO  RESCIND. 

A  bill,  which  seeks  to  rescind  a  contract  in  part,  without  restoring  the  op- 
posite party  to  the  condition  he  occupied  previously  to  plaintiff's  connec- 
tion with  him,  is  radically  defective.     Martin  v.  Cook,  199. 

OOPARTNERSHIP  FUNDS. 

Where  one  of  a  copartnership,  by  any  means,  gets  a  fund  belonging  to  ih* 
firm,  he  is  not  at  liberty  to  appropriate  it  to  his  own  exclusive  benefit, 
but  must  share  it  with  his  copartners.     Eason  v.  Cherry,  261. 

CORPORATION— DISSOLUTION  OF. 
Upon  the  dissolution  of  a  corporation  by  the  expiration  of  the  time  for 
which  it  was  chartered,  its  debts  become  extinct.  Malloy  v.  Malleit,  345. 


INDEX,  389 

CORPORATORS— INDIVIDUAL  LIABILITY. 

'Under  a  provision  in  an  act  of  incorporation,  "  that  the  private  property  o( 
the  individual  stockholders  shall  be  liable  for  the  debts,  contracts  and  lia- 
bilities of  the  corporation,"  it  was  held  that  the  responsibility  on  the  in- 
dividual stockholders  is  a  secondary  one,  and  that  when  the  debts  against 
the  corporation  became  extinct  by  tlie  expiration  of  its  charter,  the  lia- 
bility of  the  individual  stockholders  became  extinct  a^so.  Malloy  v. 
MalleU,  345. 

COURT'S  CONTROL  OVER  AN  OFFICE  BOND. 
Vide  Bond  taken  by  order  ov  Court. 

COVENANT  OF  QUIET  ENJOYMENT. 
Vide  Non-resident. 

CREDITOR'S  BILL. 

1.  Where  a  bill  was  filed,  i3y  a  judgment  creditor,  against  a  trustor  and  his 
trustee,  to  have  satisfaction  of  his  judgment  out  of  the  resulting  interest  of 
the  trustor,  alleging  that  the  debtor  had  not  a  legal  title  to  any  property, 
whatsover,  and  that  tiie  interest,  sought  to  be  subjected,  was  one,  which 
only  could  be  reached  in  a  court  of  equity,  it  was  held  not  to  be  necessary 
testate  that  the  plaintiff  had  taken  out  a  Jl.  fa.  on  his  judgment,  and  that 
the  same  was  returned  millu  bona.     Rountree  v.  McKay,  87. 

2.  Where  a  bill  was  filed  by  a  judgment  creditor,  to  subject  the  resulting  in- 
terest of  the  trustor  in  personalty,  and  it  appeared  that  other  judgment  cred- 
itors, as  well  as  plaintiff,  had  levied  fi.  fas.  on  the  trustor's  interest  in  the 
land  conveyed  in  the  deed  of  trust,  it  was  held  that  such  other  judgment 
creditors  were  necessary  parties  to  tliebill.     Ibid. 

CROSS  BILL. 

Pr.4CTICE,    6. 

DAMAGES— LIQUIDATED. 

Where  A  sued  B,  on  a  contract  about  the  getting  of  shingles,  aiid  a  com- 
promise was  made  in  writing,  to  the  effect  that  B  should  confess  judg- 
ment for  $500,  to  be  discharged  within  twelve  months  by  the  delivery  of 
so  many  shingles  at  given  prices,  and  a  judgment  was  entered  aecordr 
ingly,  it  being  admitted  that  the  shingles  were  to  be  paid  for  when  de- 
livered, at  the  prices  agreed  on,  it  was  held  that  the  writing  and  the 
judgment  were  but  an  obligation  to  pay  a  penal  sum,  and  the  court  di- 
rected that  the  judgment  should  stand  as  a  security  for  the'damages  ac- 
tually sustained.     Lloyd  v.  Whitley,  316. 

DEATH  OF  SLAVES  SUED  FOR. 

No  suit,  in  equity,  can  be  brought  to  follow  slaves,  limited  in  contingeni, 
remainder,  in  the  hands  of  one  claiming  a  present  defeasible  interest,  al- 
ter the  slaves  have  died ;  they  having  died  in  the  lile  time  of  the  fust 
taker.     Herndon  v,  Pratt,  327. 


390  INDEX. 

DECLARATION  OF  TRUST. 
There  is,  in  this  State,  no  statute  which  requires  that  the  declaration  of  n 
trust,  made  at  the  time  when  the  legal  title  to  land  or  slaves  passes  to 
one.  who  agrees  to  hold  in  trust,  shall  be  in  writing.     Riggs  v.   Swann, 
118. 

DECREE. 

Vide  Practiob,  1. 

DECREE  FORMER  AS  A  BAR. 

A  suit  in  equity  seeking  to  set  aside  a  deed,  because  of  incapacity  on  the 
part  of  the  bargainor,  and  fraud  and  imposition  on  the  part  c^  the  bar- 
gainee, is  not  for  the  same  matter  as  one  alleging  that  a  deed  was  in- 
tended to  be  only  a  contract  to  convey  on  payment  of  the  purchase- 
money,  and  was  erroneously  worded,  because  of  the  ignorance,  mistake 
or  fraud  of  the  draftsman,  and  a  plea  alleging  the  matter  of  the  former 
suit  in  bar  of  the  second,  was  over-ruled.     Ray  v.  Scott,  283. 

DIICREB  FOR  DISTRIBUTIVE  SHARE  IN  ANOTHER  STATE. 

A  decree  for  a  distributive  share  in  another  State,  was  held  not  to  be  a  bar 
to  a  recovery  of  a  distributive  share  of  property  lying  in  this  State. — 
Jones  V.  Gerock,  190. 

DECREE  FOR  DOWER  IN  ANOTHER  STATE. 

It  was  further  held,  that  a  decree  for  dower  in  another  State,  would  be  con- 
sidered as  confined  to  the  lands  situate  in  such  other  State,  and  as  not 
embracing  lands  situated  m  this  State.     Joma  v.  Gerock,  190. 

DEED— REFORMATION  OF. 

1.  Courts  of  equity  do  not  assume  jurisdiction  to  reform  deeds  unless  th* 
transaction  be  based  on  a  valuable  or  meritorious  considerations.  Htmf 
T.  Frazier,  90. 

'.;.  Where  A  had  loaned  B,  his  brother,  a  sum  of  money,  and  taken  a  convey- 
ance of  a  tract  of  land  and  some  slaves  as  security  for  the  repayment,  and 
lh«  two  l)rotlier.«  came  to  an  agreement  that  A  should  convey  the  property 
fo  D  on  c(^rtain  trusts,  to  let  B's  v/ife  and.  children  live  upon  the  land  and 
eijjoy  it  for  (he  life  of  the  mother,  and  then  to  be  sold  for  the  payment  oi 
A's  Uebts,  and  tiie  overplus  to  be  paid  to  her  children,  it  was  held  that  tb« 
deed  of  trust  was  founded  on  a  valuable  consideration,  and  as  such  th» 
court's  power  to  reform  its  defects,,  could  be  properly  exercised.     Ibid. 

l>EJftD  OPERATING  IN  TWO  CAPACITIES. 

A  deed  combining  the  two  characters  of  a  deed  ot  trust  to  secure  creditors, 
and  a  deed  of  settlement  in  trust  for  a  wife  and  children,  may  operata 
and  have  efl'ect  in  both  characters,  provided  it  has  been  duly  proved  »nd 
registered.     Johnston  v.  Malcom,  120. 


INDEX.  391 

DEED— INCONSISTENT  PROVISIONS  OF. 

Where  slaves  were  conveyed  to  a  feme  covert,  by  a  deed  of  gift,  and  the 
first  clause  of  the  conveyance  passed  the  legal  estate  to  her  and  the  heirs 
of  her  body,  it  was  held  that  a  subsequent  clause  of  the  conveyance,  re- 
straining her  husband  from  all  control  over  said  slaves,  was  inconsistent 
•  with  the  first  clause  and  inoperative,  and  that  the  slaves  vested  in  tb« 
husband  y«re  mariti.     Smith  v.  Martin,  179. 

DEED  DECLARED  A  SECURITY. 

1.  Where  there  is  no  allegation  of  fraud,  imposition,  oppression,  or  mistake, 
the  Court  will  not  set  up  a  parol  agreement,  and  declare  an  absolute  deed 
to  be  a  mere  security  for  money  advanced.     Whitfield  v.  Cates,  136. 

2.  Where  a  valuable  consideration  has  been  paid  by  the  person,  to  whom  an 
absolute  deed  for  slaves  is  made,  the  allegation  of  a  parol  trust  in  favor  of  a 
third  party,  forms  no  exception  to  the  rule  in  courts  of  equity,  in  respect 
to  declaring  such  a  deed  a  mere  security  for  money  loaned.     Ihid. 

Vide  OvER-KEACniNG  CONTRACTS,  2. 

DEED— DESTRUCTION  OF. 
Vide  Partner — secret,  1,  2. 

DEPOSIT  IN  BANK. 

A  deposit  in  a  bank,  is  not  to  be  considered  as  included  among  debts  order- 
ed by  the  will  to  be  collected  and  invested  for  the  benefit  of  a  legatee, 
especially  before  a  demand  and  refusal,  on  the  part  of  the  bank,  to  pay. 
Adams  v.  Jones,  221. 

Vide  Following  money. 

DISSOLUTION  OF  COPARTNERSHIP, 

Vide  Partner — secret. 

DISTRIBUTIVE  SHARE. 
Vide  Attachment,  Decree  for  distributive  share,  &c. 

DISTRIBUTEES. 

Under  the  statute  of  distributions  in  this  State,  Rev.  Code,  chap.  64,  sec- 
tions 1  and  2,  repr-esentation  is  not  admitted  among  collateral  kindred 
after  brother's  and  sister's  childien,  and,  consequently,  uncles  and  aunt* 
of  an  intestate,  take  to  the  exclusion  of  the  children  of  a  deceased  uncle. 
Johnston  V.  Chesson,  146. 

DIVOR&E. 
Vide  Alimont. 

DOWER. 

Vide  Decree  fob  dower,  &c. 

ELECTION. 

Where  a  te.stator  had  an  estate  in  land  limited  over  to  the  defendant  on  his 


392  IKDEX, 

dying  without  issue,  and  he  devised  the  said  land  to  be  worked  for  two 

years  alter  his  death  for  the  payment  of  his  debts,  and   in  his  will  he 

gave  valuable  legacies  to  the  defendant,  which  she  elected  to  take,  it  was 

held  that  though  the  testator  died  without  issue,  yet  the  provision  for  ths 

payment  of  the  debts  must  be  enforced.     Norfleet  v.  SJade,  217. 
/ 

EMANCIPATION. BY  WILL. 

The  act  of  1860,  chapter  37,  preventing  the  emancipation  of  slaves  by  will, 
applies  to  the  case  of  a  will  made  before  its  passage,  where  the  testator 
died  subsequently  thereto.     Mordecai  v.  Boylan,  365. 

KMANOIPATED— REFUSING  TO  BE. 

Where  a  negro  woman  slave  was  willed  to  one  for  life,  and  then  to  be  free, 
and  such  slave  formally  elected  to  remain  a  slave,  it  was  Md  that  the 
stahis  of  such  woman,  after  such  election,  was  fixed  as  from  the  testa- 
tor's death,  and  that  her  offspring,  born  after  that  event,  remained  slaves, 
and  that  she  and  her  offspring  passed  by  a  residuary  clause  of  the  will. 
CJarh  v.  Bell,  272. 

EXECUTORS  IN  DIFFERENT  STATES. 

Where  a  testator,  having  estates  in  this  and  two  other  States,  appointed 
an  executor  here  and  another  residing  in  one  of  the  other  States,  and 
provided  that  they  should  not  be  required  to  give  security,  and  it  appear- 
ed that  the  money  in  the  hands  of  the  executor,  in  this  State,  was  not 
sufficient  to  pay  the  pecuniary  legacies,  it  was  held'to  be  the  intention  of 
the  testator  that  such  executor  was  not  required  to  prove  the  will  abroad 
and  collect  money  in  the  other  States  to  pay  the  legacies  in  full,  and 
that  he  must  pay  the  money  in  his  hands  to  the  legatees  ^;ro  rata,  and 
that  the  testator  intended  the  executor  abroad  to  administer  the  assets 
in  the  other  States.     Mordecai  v.  Boylan,  365. 

EXAMINATION  OF  DEFENDANT  ONi)ATH. 

Where,  in  a  suit  for  an  account,  plaintiff  obtained  leave  to  examine  defend- 
ant upon  oath,  before  the  master,  and  he  was  interrogated  as  to  the 
items  of  plaintiff's  account,  it  was  held  that  defendant's  answers  were 
evidence  for  him,  only  so  far  as  they  were  responsive  to  the  ques- 
tions, and  that  he  could  not,  in  this  way,  prove  his  charges  against 
plaintiff.     Fleming  v.  Murph,  59. 

EXCEPTIONS  TO  A  BILL. 
Vide  Plkading,  Practice,  3. 

EXECUTOR— BUYING  TESTATOR'S  PROPERTY. 

Where  an  executrix  procured  an  order  of  court  to  sell  certain  slaves,  in 
which  she  Avas  willed  a  life  estate,  upon  a  suggestion  that  such  sale  was 
necessary  for  the  payment  of  the  debts  of  her  testator,  and  in  a  short 
time  after  the  sale  she  took  conveyances  from  the  purchasers,  for  the 
same  slaves,  without  ever  having  been  out  of  possession,   it  being  also 


INDEX.  393 

made  to  appear  that  there  were  no  debts  of  the  estate  unpaid  at  the  time 
of  the  orders  to  sell,  it  was  held  that  the  executrix  took  nothing  by  her 
purchase,  and  should  be  declared  a  trustee  for  the  remaindermen.  Joyn- 
er  V.  Conyers,  78. 

EVIDENCE. 
Vide- Examination  of  dekesdant  on  oath;  Special  intkurogatories. 

FEME  COVERT. 

In  order  to  create  a  separate  estate  in  a  feme  covert,  there  must  be  wonk 

sufficient  to  raise  a  trust  lor  her  beneflt     Smith  v.  Martin,  179. 
Vide  Deed — Inconsistent,  &c. 

FOLLOWING  MONEY. 

1.  Where  an  agent  deposited  money  in  bank  as  an  ordinary  deposit,  stating 
at  the  time  that  it  was  the  money  ot  his  principal,  but  desired  the  officer  to 
place  the  money  to  his  credit  on  the  books  of  the  bank,  alleging  that  he 
might  have  occasion  to  use  it  for  the  benefit  of  his  principal,  and  ihe  agent 
died  shortly  afterwards  insolvent,  it  MiUs  helcl  tluit  the  principal  was  enti- 
tled to  the  fund,  und  might  follow  the  same  in  a  court  of  equity.  WhUl<^/ 
V.  Foy,  .j4:. 

2.  Where  one  takes  a  note  of  the  estate  from  an  administrator,  mala  fide,  a« 
for  instance,  in  payment  of  the  administiator's  own  debt,  be  cannot. hold 
the  fund  from  the  next  of  kin,  or  tliose  who  are  encitled  to  be  substituted 
in  their  place,  unless  the  adnnuistrator  was  iu  advance  for  the  estate. — 
Latham  v.  Moore,  1G7. 

FORIEGN  MISSIONS— BEQUEST  TO. 
Vide  Will — Construction  of  a,  15. 

FRAUD  ON  THIRD  PERSONS. 

A  mortgagee  having  agreed  with  the  wife  of  the  mortgagor,  that  upon  a 
part  of  his  debt  being  satisfied,  he  would  assign  for  her  benefit,  his  inter- 
est in  the  debt,  and  the  property  rportgaged ;  and  in  pursuance  )th§reof, 
having  assigned  the  same  to  a  third  person,  held  that  the  assigue.e  was 
entitled  to  enforce  against  the  wife's  legatee.*,  an  agreement,  by  which,  at 
the  time  she  was  soliciting  him  to  aid  her  iu  securing  the  benefits,  she 
engaged  that  upon  her  death,  her  interest  in  the  property  mortgaged, 
should  be  subjected  to  pay  the  debts  due  to  such  assignee  by  the  inort- 
gator.     Bowers  v.  Sirudwich,  288. 

FRAUD. 

Vide  Following  money,  2 ;  Injunction,  2. 

FRAUD— STATUTE  OF. 

A  memorandum  or  note  of  a  contract  may  bo  signed  by  one  in  the  nameoj 
his  principal,  so  as  to  comply  with  the  requisitions  of  the  statute  of  frauds. 


394  INDEX. 

without  being  thereunto  authorised  in  writing.     BlacknaU  v.  Pari$h,70. 
Vide  Declaration  or  trust  ;  Spkcific  performakck,  1. 

FRAUD  IN  THE  FACTUM  OF  A  DEED. 
Vide  Jurisdiction,  3. 

FRAUD  UPON  MARRIAGE. 

1.  A  conveyance,  by  a  woman,  after  a  marriage  engagement,  and  upon  fhe 
eve  of  its  solemnization,  is  a  fraud  upon  the  rights  of  the  intended  husband 
and  will  not  be  upheld,  unless  it  appear  clearly  and  unequivocally,  that  th« 
liusband  had  full  knowledge  of  the  transaction  and  freely  assented  to  it. — 
Johnson  v.  Peterson,  12. 

2.  Where  a  woman,  being  under  an  engagement  to  marry,  made,  a  week  be- 
fore the  marriage,  a  voluntary  secrSt  conveyance  of  all  her  property,  inclu- 
ding slaves,  to  the  defendant,  a  man  of  a  slender  means,  who,  after  tha 
marriage,  took  the  slaves  into  his  possession,  and  refused,  on  demand,  to 
give  tliem  up,  but  claimed  them  as  his  own,  under  such  conveyance,  it  wa« 
held  that  the  husband  was  entitled  to  writs  to  restrain  the  defendant  from 
removing  the  slaves  out  of  the  State,  although  no  threat  to  do  so  was 
made  to  appear.     Ihid. 

FRAUDULENT  CONVEYANCE. 
Where  a  debtor  conveyed  all  his  property  with  an  intent  to  defraud  hia 
creditors,  and  then  left  the  State,  it  was  held  that  a  creditor  could  not 
maintain  a  suit,  in  equity,  to  have  his  debt  satisfied  out  of  the  property, 
under  the  statute,  Rev.  Code,  chapter  7,  section  20,  his  remedy  being  at 
Law.     SrrMherman  v,  Allen,  17. 

FREEDOM— ELECTION  TO  DECLINE. 
Vide  Emancipated — refusing  to  be. 

FUND  FOR  THE  PAYMENT  OF  DEBTS. 

1.  Where  a  testator  gave  property,  real  and  personal  specifically,  and  then 
devised  and  bequeathed  all  the  "  balance  of  his  estate"  to  certain  parties  in 
general  terras,  and  after  making  his  will,  the  testator  acquired  property,  re- 
al and  personal,  it  was  held  that  this  after-acquired  property  fell  into  tha 
residuum  bequeathed  generally,  and  that  upon  a  deficiency  of  funds  provi- 
ded for  the  payment  of  debts,  the  after-acquired  personalty  was  first  liabk» 
Knight  v.  Knight,  134. 

jL  Personalty  in  the  hands  of  an  executor  or  administrator,  whether  bequeath- 
ed specifically  or  otherwise,  is  first  liable  to  the  payment  of  debts,  unlea* 
specifically  exempted,  and  the  real  estate  belonging  to  the  deceased,  wheth- 
er descended  or  devised,  is  not  liable  until  the  former  is  exhausted.     Jbid. 

GUARDIAN— COMPENSATION  TO. 
Vide  Guardian  and  Ward,  1. 


INDEX.  ^» 

GUARDIAN  AND  WARD. 

1.  A  guardian  is  entitled  to  commissions  on  payments  made  for  goods  bcHjpht 
of  a  firm  of  which  he  was  a  member ;  but  not  on  charges  for  board  while  his 
ward  lived  in  his  family.      Williamson  v.  Williams.  62. 

2.  Where  a  guardian  waited  six  months  after  the  principal  in  a  note,  held  by 
him  as  guardian,  died  insolvent,  before  he  sued  the  surety,  who  also  be- 
came insolvent  before  suit  was  brought,  such  surety,  though  much  indebt- 
ed, being,  up  to  one  month  before  his  failure,  in  good  credit,  and  failed 
suddenly,  the  guardian  having  opportunity  all  the  time  of  knowing  the  tnia 
condition  of  the  obligors,  it  was  held  that  by  his  lachc?,  he  made  himself 
responsible  for  the  loss  of  the  debt.     Ibid. 

3  Where  it  appeared  that  the  property^  in  this  State,  of  a  ward  residing  in 
another  State,  consisted  of  good  bonds,  at  interest,  in  the  hands  of  his  guar- 
dian here,  a  part  of  ^fllich  arose  from  the  sale  of  land,  and  the  ward  was 
ni'arly  of  age,  and  there  was  no  special  necessity  made  to  appear  for  mak- 
ing a  transfer  of  the  property,  the  Court  of  Equity,  in  the  exercise  of  il« 
discretion,  refused  to  order  a  transfer  of  the  estate  to  the  hands  of  a  guardi- 
an appointed  in  such  other  State.     Douglas  v.  taldwell,  20. 

HUSBAND  AND  WIFE. 

Vide  Fraud   upon   Marriage  ;  Jurisdiction,  4,  5 ;  Ovkrreachino    con- 
tracts, 1 ;  Wife's  interest  in  a  distributive  shark. 

IDENTITY  OF  CAUSES  OF  ACTION. 
Vide  Decree  former  as  a  bar. 

IMPOTENCY. 

Impotency  in  a  husband  does  not  render  a  marriage  by  him,  void  ab  initio, 
but  only  avoidable  by  sentence  of  separation,  and  until  such  sentence,  it 
is  deemed  valid  and  subsisting.     Smith  v.  Morehead,  360. 

IMPROVEMENTS. 
Vide  Specific  performance,  4. 

INDEMNITY. 

Vide  Bond  of  indemnity. 

INDEMNITY. 

Vide  Corporators,  &c. 

INFANT'S  ESTATE  DISPOSED  OF  BY  FRIENDS. 

Where  the  friends  of  an  infant  made  an  exchange  of  his  slaves  for  others, 
and  those  received  in  his  behalf  were  carried  off  by  his  friends  and  Bold, 
and  he  afterwards,  without  taking  any  benefit  from  the  arrangement,  re- 
pudiated it,  and  recovered  in  trover  for  those  belonging  to  him,  a  court  of 
equity  will  not  interfere  to  restrain  his  execution,  with  the  view  of  com- 
pelling him  to  return  the  slaves  received  on  his  behalf  or  account  for 
their  value.     Tarborotigh  v.  Tarborough,  209. 


396  INDEX. 

INJUNCTION. 

1.  Where  the  defendant,  in  his  answer,  admitted  that  a  cause  was  referred, 
(no  pleas  having  been  entered,)  and  that  the  reference  was  stricken  out 
without  notice  to  the  otlier  party,  and  tlie  cause  was  submitted  to  a  jury, 
and  a  judgment  obtained  against  him  without  his  knowledge,  the  Court 
refused  to  dissolve  an  injunction  granted  to  restrain  the  collection  of  the 
same.     Myers  v.  Daniels,  1. 

2.  Where  both  parties  to  a  trade  for  the  sale  of  slaves  had  full  time  for  delib- 
"'eration,  and  the  deeds  were  executed  without  secrecy,  and  attested  by  a 

respectable  witness,  and  there  was  no  evidence  of  mental  incapacity,  and 
no  sufficient  proof  of  a  gross  inadequacy  of  price,  it  was  held  that  the  trans- 
action should  be  sustained.     Carman  v.  Page,  37. 

?>.  Gross  inadequacy  of  price  is  not  sufficient,  in  itself,  to  set  aside  a  deed,  al- 
though it  is  a  strong  circumstance,  tending  with  others,  to  make  out  a  case 
of  fraud  or  imposition.     Ihid. 

4.  Whenever  it  can  be  clearlj'  proved  that  a  place  of  sepulture  is  so  situated 
that  the  burial  of  the  dead  there,  will  endanger  life  or  health,  either  by  cor- 
rupting the  surrounding  atmosphere,  or  the  water  of  wells  or  springs,  a 
court  of  equity  will  grant  injunctive  relief.      Clark  v.  Lawrence,  83, 

5.  Where  a  bill  was  filed!  praying  to  have  a  nuisance  abated,  and  for  an  in- 
junction to  restrain  -the  defendant  from  erecting  it  in  future,  and  the  act 
complained  of  was  of  the  character  of  a  nuisance,  but  the  testimony  was 
not  sufficient  to  satisfy  the  Court  that  it  amounted  to  a  nuisance  in  the  par- 
ticular case,  the  Court  directed  an  issue  to  be  tried  in  the  superior  court,  to 
determine  the  fact.     Ibid. 

♦5.  Where  dealings  between  a  father-in-law  and  his  son-in-lav,',  wherein  the 
latter  had  been  the  other's  agent,  were  closed  in  a  hurried  manner,  and  a 
note  given  by  the  father-in-law  at  the  importunate  solicitation  of  the  son- 
in-law,  on  calculations  made  by  him,  under  a  promise  that  the  whole  set- 
tlement should  be  open  to  subsequent  examination,  and  the  answer  to  spe- 
cific allegations  of  errors  was  unfair  and  evasive,  itwas/ieW  that  an  injunction 
to  restrain  a  judgment  at  law  on  such  note,  should  be  continued  to  the 
hearing,  and  that  the  judgment  should  stand  as  security  for  whatever  might 
be  ascertained  to  be  due.     Hadley  v.  Rouniree,  107. 

7.  Except  to  stay  waste  or  prevent  some  irreparable  injury,  the  writ  of  in- 
junction is  only  issued  as  ancillary  to  some  primary  equity,  which  the  bill 
seeks  to  enforce.     Ehorn  v.   Waldo,  111. 

8.  Where,  it  appeared  that  a  contract  made  with  a  corporation  to  do  certain 
work,  was  fulfilled  to  the  satisfaction  of  the  board  of  directors  managing 
the  concerns  of  the  corporation,  and  that  such  work  was  done  on  favorable 
terms,  and  was  beneficial  to  the  company,  it  was  held  that  a  court  of  equi- 
ty would  not,  on  the  allegation  of  one  of  the  corporators  that  there  was  a 
secret  agreement  between  one  of  the  directors  and  the  contractor  to  divide 
the  profits,  enjoia  the  payment  of  the  stipulated  compensation.  Havens  v, 
Hovt,  lib. 


INDEX.  397 

?».  A  bill  will  not  lie  at  the  instance  of  the  heirs,  afjainst  the  Rdministrator  of 
one  who  liad  executed  a  bond  to  make  title,  to  enjoin  the  latter  from 
making  a  deed  to  the  obligee,  upon  the  ground  that  he  had  not  paid  the 
purohase-Oioneyl  but  fraudulently  pretended  to  have  had  done  so,  and 'to 
nullify  the  contract.  It  would  be  the  duty  of  the  administrator,  if  the 
money,  in  such  a  case,  was  not  collected,  to  enforce  the  payment,  and  he 
would  be  liable  if  he  failed  to  do  so.      White  v.  Hooper,  152. 

10.  Where  one,  who  had  only  a  life-estate  in  land,  made  a  deed  for  a  fee  sim- 
ple, and  the  deed  contained  a  warranty  in  fee,  and  the  vendee,  knowing 
of  the  defect  in  the  title,  gave  his  notes  for  the  purchase-money,  upon 
which  judgments  were  obtained,  it  was  held  that  a  court  of  equity  would 
not  interfere  by  injunctive  process  to  restrain  the  collection  of  any  part  of 
these  judgments,  but  would  leave  the  vendee  to  his  action  on  the  warran- 
ty, it  appearing  that  the  warrantor  was  solvent.     Henry  v.  Ellioii,  175. 

11.  In  the  case  of  a  common  injunction,  where  the  answer  is  full,  and  the 
plaintiff  fails  to  prove  his  allegations  by  any  admission  in  the  answer^  be- 
ing without  proof,  his  injunction  must,  be  dissolved.    Mimsv.  McLean,  200. 

V2.  In  a  case  of  a  common  injunction,  where  the  answer  is  full  and  respon- 
sive to  the  bill,  and  the  equity  is  not  confessed,  but  denied  the  injunction 
must  be  dissolved.     Jones  v.  McKenzie,  203. 

1,*^.  Where  the  obligee,  in  a  bond  for  title,  paid  a  material  portion  of  the  pur- 
chase-money down,  and  gave  a  note  for  the  residue,  and  entered  into  pos- 
session and  continued  it  up  to  the  time  of  a  suit  in  ejectment  by  the  obli- 
gor, it  was  held  to  be  a  strong  case  for  the  court  of  equity  to  interfere  by 
injunction,  to  prevent  the  obligee  from  being  turned  out,  under  the  execu- 
tion, in  the  suit  at  law.     Allen  v.  Pearce,  309. 

14.  Where,  to  a  bill  for  an  injunction,  the  defendant  answers  lightly  and  eva- 
sively to  material  allegations,  the  injunction  will  not  be  dissolved.     Tbid. 

iL.  Where  new  matter  is  introduced  in  an  answer,  in  avoidance  of  the  plain- 
tiir's  equity,  it  will  not  be  considered  on  a  motion  to  dissolve.     Ibid. 
Vide  Nuisance,  Restkaint  on  sukriff  &c. 

INTEREST— EXECUTOR'S  LIABILITY  FOR. 

An  executor  is  not  liable  for  interest  on  money   collected  by  him,  unless  he 
receives  interest  on  the  same.      Chumhers  v.  Kerns,  280. 

INTEREST  ON  A  LEGACY. 

1.  Interest,  on  a  legacy,  as  a  general  rule,  is  only  chargeable  from  the  tim« 
the  legacy  is  ordered  to  be  paid.     Ballaniijne  v.  Ihtrner,  22-1. 

i.  Where  money  is  given  by  will,  as  a  portion  to  a  cbdd,  or  to  one  to  whom 
the  testator  stood  in  loco  2>nrentis,  or  for  whose  support  it  was  intended  to 
make  a  provision,  or  where  the  legacy  is  deinonstrative,  and  the  fund  is 
productive,  it  was  held  that  the  legatee  is  entitled  to  interest  from  the  death 
of  the  the  testator.     Mg  Williams  v.  Falcon,  235. 

i.  Where  the  legatees  were  children  and  grand-children  of  testator's  wife, 
and  the  assets,  out  of  which  the  pecuniary  legacies  were  to  be  paid,  were 


398  INDEX. 

bearing  interest,  it  was  held  that  such  legacies  were  entitled  to  draw  in* 
terest  from  the  testator's  death,    Mordecai  v.  ^oyJan,  365. 

INTEREST  AGAINST  AN  AGENT. 

Where  an  agent  withheld  the  notes  of  his  principal  from  the  administrator, 
which  notes  were  of  long  standing,  and  large  amounts  of  interest  had  ac- 
cumulated, and  being  warned  by  the  administrator  that  he  would  be 
held  liable  for  interest  on  the  accumulation  unless  he  surrendered  the 
notes,  or  had  them  renewed,  it  was  heJd  that  he  should  be  made  liable 
so  to  account  from  the  date  of  the  filing  of  the  bill.  Hill  v.  Williams, 
242. 

IRON-WORKS— BOUNTY  TO. 

1.  Where  a  grant  of  3000  acres  of  land  was  made  as  a  bounty  under  the  act 
of  1788,  in  respect  to  a  particular  seat  for  iron-works,  it  was  held  that 
such  grant  was  appendant  to  the  seat,  and  exhausted  the  bounty  intended 
to  be  given  by  the  statute  ;  so  that  one  who  afterwards  became  owner  of 
the  seat,  and  rebuilt  the  works  there,  after  the  former  works  had  gone 
down  and  were  abandoned,  had  no  right  to  another  bounty  in  respect  of 
such  seat,  and  that  a  second  grant  for  bounty  in  such  a  case  was  void. — 
The  Attorney  General  v.  Oshorn,  298. 

2.  Whether  the  requirements  of  the  statute  of  1788,  Rev.  Statutes,  chap.  75, 
in  regard  to  making  the  entry — its  return  to  the  county  court,  the  order  of 
survey  and  the  appointment  and  report  of  a  jury  should  be  strictly  com- 
plied with  as  a  condition  precedent  to  the  issuing  of  a  grant,  or  whether 
such  matters  are  merely  directory,  and  do  not  affect  the  validity  of  tb« 
grant, —  Quere.     Ibid. 

3.  Whether  a  grant,  which  includes  within  its  boundaries,  a  large  scope  of 
coHntry,  say  an  area  of  ten  miles  by  seven,  but  Avhich  in  its  face,  purports 
to  be  for  3000  acres  of  vacant  land,  the  excess  being  included  in  older  pat- 
ents is  void, —  Quere.     Ibid. 

ISSUE  SENT  TO  A  COURT  OF  LAW. 
Vide  Injunction,  5. 

JURISDICTION. 

1.  There  is  no  ground  for  going  into  a  court  of  equity  to  recover  back  dam- 
ages assessed  at  law  in  behalf  of  a  defendant  to  an  action  of  replevin,  up- 
on the  ground,  that  the  plaintiff  has  the  title,  and  has  brought  another  ac- 
tion of  replevin,  but  cannot  recover  back  those  damages  in  that  or  any 
other  action  at  law.     Eborn  v.  Waldo,  111. 

2.  That  a  note  had  been  obtained  by  fraud  in  the  factum,  is  a  good  deiens« 
at  law,  and  cannot  afterwards  be  brought  forward  for  the  purposes  of  aa 
injunction.     Parton  v.  Luterloh,  341. 

3.  It  is  no  ground  for  a  bill  for  an  injunction,  that  the  complainant  was  not  a 
party  to  the  suit  at  law  because  that  process  had  not  been  served  on  him. 
His  proper  remedy  is  to  have  the  judgment  set  aside,  on  motion,  in  th« 
Court  granting  it     Ibid. 


INDEX.  39» 

4.  The  domicil  of  the  husband,  draws  to  it  the  domicil  of  the  wife ;  thert/ort, 
according  to  the  14th  Rule  of  the  3d  section  of  the  32d  chapter  of  the  Re- 
vised Code,  where  both  parlies  are  residing  in  this  State,  a  bill,  by  the  wife, 
for  a  divorce  for  the  cause  of  impotency,  must  be  brought  in  the  county 
where  the  husband  resides.     Smith  v.  Morehead,  360. 

6.  As  a  general  rule,  ao  objection  to  the  jurisdiction  of  the  court  of  equity 
may  be  taken  on  demurrer  when  the  facts  appear  upon  the  record.  Ibid. 
Vide  Nonresident,  &c. 

I..\CHES  IN  (GUARDIAN. 
Vide  Guardian  and  Ward,  2. 

LEGITIMACY. 

1.  A  child  is,  in  law,  legitimate,  if  born  within  matrimony,  though  born  in  a 
week  or  day  after  marriage.     Rhyne  v.  Hoffman,  335. 

2.  A  child  begotten  while  the  parties  were  man  and  wife,  but  not  born  until 
bix  months  after  the  husband  had  obtained  a  divorce  from  the  bouds  of 
matrimony  on  account  of  the  wife's  adultery,  will  be  taken  to  be  legitimate, 
unless  it  be  proved,  by  irresistable  evidence,  that  the  husband  was  impotent 
or  did  not  have  sexual  intercourse  with  his  wife.     Ibid. 

3.  Where  a  man  and  woman  live  together  as  man  and  wife,  and  are  so  re- 
puted in  the  neighborhood,  up  to  the  death  of  one  of  the  parlies,  and  hav* 
children  which  they  treat  as  legitimate,  a  court  will  not  declare  against  the 
marriage  except  upon  the  most  overwhelming  proof  that  there  was  nomai- 
nage.    Jackson  v.  Rhem,  141. 

LEGACIES. 

Vide  Mistake  or  fact. 

LEGACIES. 

Vide  Executors  in  different  States. 

LEGACY  TO  A  DECEASED  PERSON. 
A  legacy  to  &  grand-daughter,  who  died  before  the  will  was  made,  is  void. 
Scales  v.  Scales,  163. 

LEGACY  AS  A  PORTION. 
Vide  Interest  on  a  Legacy,  2. 

LEGACIES— LEX  LOCI  AS  TO. 

The  personal  estate,  which  is  in  this  State  of  one  residing  in  another  State, 
\n  respect  to  both  debts  and  legacies,  must  be  administered  by  one  quali- 
fied to  act  under  the  orders  and  control  of  our  courts  and  according  to 
our  laws,  but  in  regard  to  the  payment  of  legacies  and  distributive  sh»re«. 
our  courts,  from  comity,  adopt  the  laws  of  the  domiciL  Jona  v.  Giock. 
190. 


400  INDEX. 

LEGACIES  IN  REMAINDER. 
Yide  Tax  on  collatkrals,  2. 

LIMITATION  TO  ONE  AND  HIS  REPRESENTATIVES. 

A  limitation  by  deed  '•  to  her  and  her  representatives"  can  only  mean  to 
her  executors  and  administrators.     AfcLaurin  v.  Fairhj,  375. 

MARRIAGE  SETTLEMENT. 

Vide  OVER-REACIIING  CONTRACTS,   1. 

MISTAKE  OF  FACT  BY  A  TESTATOR. 

1.  By  the  Act  of  1860,  chapter  37,  slaves  attempted  to  be  emancipated  by 
will,  go  back  to  the  next  of  kin,  and  not  to  the  residuary  kgatee.     Morde- 

cai  V.  Boylan,  265. 

2.  Where  a  testator,  in  a  codicil,  gave  as  a  reason  for  a  legacy  to  a  grandson, 
that  lie  had  di-inhcrited  such  grandson^  but  the  foct  Avas,  that  he  had  not 
disinherited  him.  but  had  given  him  a  large  legac}^  in  a  clause  of  his  wili, 
it  was  held  that  the  bequest,  in  the  will,  was  not  revoked  by  that  of  tha 
eodicil,  but  that  the  latter,  itself,  was  void  on  account  of  the  mistake,  and 
held  further,  that  parol  evidence,  as  to  testator's  feelmgs  towards  the  lega- 
tee, was  admissible,  in  the  question  of  fact,  as  to  the  mistake.     Ihid. 

MISTAKE  IN  DESCRIPTION  IN  DEED. 

Where  land,  which  was  yold  to  A  under  a  mistaken  description,  was  after- 
wards cx)nveyed  by  the  same  owner  to  B  by  a  proper  deed,  for  a  valua- 
ble consideration,  without  notice  to  B  af  the  mistake,  it  was  held  that  a  bill 
to  reform  the  former  deed  and  correct  the  eri'or,  would  not  lie  again?t 
either  A  or  B  ;  but  it  appearing  that  A  had  got  paid  for  part  of  the  same 
land  twice,  he  was  not  allowed  to  recover  costs  on  the  dismissal  of  tb« 
bill.     Sealey  v.  Brtcmhle,  295. 

MONEY  ARISING  FROM  PRIVATE  SALE  OF  WIFE'S  LAND. 

Money  arising  by  the  sale  of  the  wife's  land  by  a  deed  executed  by  th« 
husband  and  wife  has  none  of  the  characteristics  of  real  estate,  and  after 
the  death  of  the  vvife,  goes  to  the  husband  jure  mariii.     Rouse  v.  Le4, 

J       352. 

MULTIFARIOUSNESS. 

A  bill  in  equity,  for  a  discovery  and  an  account  by  one  of  two  wards 
againsc  one  of  two  joiut-guardians,  alleging  that  hs  had,  exclusively,  re- 
ceived the  estate  of  the  wards,  in  wliich  bill  the  other  guardian  is  mada 
plaintiff,  and  the  other  ward  defendant,  is  not  multifarious.  Cam])  y. 
Mills,  274. 

NON-RESIDENT— SUIT  AGAINST. 

Where  a  plaintiff  has  a  remedy  at  law  on  a  covenant  of  quiet  enjoyment, 
and  brings  a  bill  in  equity  against  the  covenantor  on  account  of  his  non- 
residence  in  the  State,  it  is  necessary  for  him  to  aver  also,  that  the  de- 


INDEX.  401 

fendant  has  no  property  or  effects  in  this  State,  out  of  which  satisfaetion 
could  be  had  upon  his  recovery  at  law. '  Falls  v.  Dickey,  357. 

NUISANCE. 

1.  It  is  the  general  course  of  the  court  of  equity,  on  applications  to  restrain 
private  nuisances  by  injunction,  to  order  an  issue  at  law  to  ascertain  the 
fact  of  the  existence  of  such  nuisance  before  the  Court  will  act.  Frizzle  v. 
Patrick,  354. 

2.  Where  a  party  has  no  particular  interest  in  an  alleged  nuisance  from  the 
ponding  back  of  water,  he  cannot  sustain  a  bill  for  an  injunction,  but  must 

'  rely  on  the  remedy  by  information  in  the  name  of  the  Attorney  General. 
Ibid. 
Vide  Injunction,  4.  5. 

ORE  TENUS  OBJECTION. 
Vide  Practice,  5. 

OVER-REACHING  CONTRACTS. 

1.  Where  a  woman  and  her  intended  husband,  upon  the  eve  of  marriage  were 
induced  by  her  brothers  to  sign  a  marriage  contract,  by  which  her  proper- 
ty was  to  be  conveyed  to  trustees  in  such  manner  as  to  deprive  her  not 
only  of  the  right  to  dispose  of  the  rents  and  profits  thereof  during  cover- 
ture, but  also  of  the  right  to  dispose  of  the  property  itself,  both  during  the 
coverture  and  afterwards,  if  she  survived,  and  gave  the  ultimate  remainder 
over  after  her  death  without  issue,  she  being  at  the  time  advanced  in  life, 
it  was  held  that  such  a  contract,  unless  proved  by  th(^  clearest  testimony  to 
have  been  fully  understood  and  freely  assented  to  by  the  intended  wife 
must  be  declared  fraudulent  as  to  her,  and  inoperative  as  against  the  hus- 
band, except  so  far  as  it  can  be  presumed  that  he  freely  assented  to  it. — 
Sanderlin  v.  Robinson,  155. 

2.  Where  one,  having  considerable  influence  over  an  old  man,  feeble  in  body 
and  mind  from  a  long  course  of  intemperance,  procured  from  the  latter  a 
deed  for  his  land  when  he  was  without  counsel,  and  in  no  condition  to  un- 
derstand it,  wherein  was  recited  a  large  debt,  which  had  no  existence,  and 
about  which  the  grantee  answered  vaguely  and  evasively,  it  was  held  that 
although  no  confidential  relation  was  proved  then  to  exist  between  the 
parties,  yet,  that  such  deed,  on  the  score  of  fraud  and  imposition,  should  be 
held  only  as  a  security  for  sums  actually  due.     Fuirill  v.  Fuirill,  337. 

PAROL  PROOF  TO  SUPPLY  A  BOND  FOR  TITLE. 

Where  an  insufficient  description  was  given  in  a  bond  to  make  title,  parol 
evidence  cannot  be  resorted  to  to  show  what  the  parties  meant,  or  to 
identify  the  particular  parcel  of  land  which  was  the  subject-matter  of  the 
written  contract.    Richardson  v.  Godwin,  229. 

PARTIES. 
Vide  NoiSANOE,  2 ;  Practice,  5. 


402  INDEX. 

PAYMENT  REPELLING  A  PRESUMPTION. 

The  payment  of  interest  upon  a  mortgage  debt  within  ten  years  before  the 
filing  of  a  bill  to  foreclose,  repels  tha  presumption  of  payment  or  aban- 
donment arising  from  the  length  of  time,     Hughes  v.  Blackwell,  73. 

PARTNERSHIP. 

1.  Where  a  partner,  whose  duty  it  is  to  keep  the  books,  seeks,  to  make  a 
charo-e  in  his  own  favor,  which  is  not  supported  by  a  proper  entry  in  the 
books,  he  must  account  for  that  fact,  and  can  only  support  'the  charge  by 
clear  p^oof;  every  presumption  being  against  him.     Broiuri  v.  IIaynes,/>0. 

2.  Where  one  entered  into  a  copartnership  with  his  son-in-law,  and  it  was 
agreed  that  the  father-in-law  should  furnish  a  house  for  a  shop,  tools,  &c., 
and  a  house  for\he  defendant  to  live  in,  and  that  he  "'should  be  at  no  ex- 
pense," it  was  lield  that  these  words  must  be  intended  to  mean  expense  for 
things  connected  with  tbe  business,  and  not  family  expenses.     Ibid. 

.3.  One  partner  cannot,  without  the  express  concurrence  of  his  copartner, 
make  a  note  of  the  firm  payable  to  himself  and  charge  the  firm  therewith. 
Ibid. 

4.  Where  A,  who  was  the  active  partner,  and  the  book-keeper  of  a  firm., 
sought  to  charge  it  with  the  value  of  a  slave  which  it  was  alleged  belonged 
to  the  firm,  and  iiad  been-appropriated  by  B,  his  copartner,  to  his  individu- 
al use,  it  was  held  tliat  in  the  absence  of  any  charge  upon  the  booths  of  the 
firm,  the  mei:e  allegation  of  it  in  his  answer^  supported  by  vague  and  im- 
probable testimony  that  such  slave  belonged  to  the  firm,  was  not  sufScient. 
Ibid. 

5.  Where  A.  who  was  the  active  partner  of  a  firm,  and  its  book-keeper,  set 
up  a  claim  against  the  firm  for  money  which  the  answer  alleged  was  due 
the  partners  jointly,  for  services  rendered  independently  of  the  copartnership, 
but  which  we.-e  appropriated  by  B  to  his  own  use  exclusively,  it  was  held 
that  this  could  not  be  made  a  charge  upon  the  firm  in  the  absence  of  proof 
that  the  money  had  been  appropriated  to  the  purposes  of  the  firm,  there 
being  no  entry  on  the  books  to  show  the  fact.     Ibid. 

PARTNER— ACTIVE. 

Vide  Partnership,  1,  2,  3,  4,  5. 

PARTNER— SECRET. 

1.  Where  one  was  a  partner  in  a  firm  in  1855  and  1857,  but  alleged  that  for 
1856  he  was  not  a  partner,  and  that  his  witlidrawal  was  evidenced  by  a 
deed  which  was  lost,  and  it  turned  out  that  the  deed  had  been  destroyed 
by  himself,  and  he  answered  delusively  about  it,  and  it  appeared  that  he 
had  acquiesced  in  certain  acts  of  his  partner,  treating  him  as  a  partner,  it 
•was  declared  by  the  Court  that  he  was  to  be  considered  as  a  partner  for 
the  year  1856,  also.     Clements  v.  Mitchell,  171. 

2.  It  was  held  by  the  Court  that  the  destruction  of  the  deed  which  it  was  ad- 
mitted explained  defendant's  connection  with  the  firm,  and  that  too,  after 


INDEX.  403 

he  knew  that  it  would  be  necessary  to  make  such  explanation,  aflbrded  a 
strong  presumption  that  such  deed  committed  him  as  a  partner.     Ibid. 

PENALTY. 
Vide  D.vMAGES  liquidated. 

PERPETUITY. 
In  determining  whether  a  hmitation  of  property  does,  or  does  not  amount 
to  a  perpetuity,  regard  is  had  to  possible,  not  actual  events,  and  the  fact, 
^   that  the  gift  might  have  included  objects  too  remote,  is  fatal.     Moore  v. 
Moore,  1.32. 

PERSONALTY. 

Vide  FuKD  for  payment  of  dkbts. 

POWER  TO  DISTRIBUTE  AMONCI  CHILDREN. 

Where  a  husband  devised  and  bequeathed  as  follows:  "I  give  and  be- 
queath to  my  beloved  wife  D  A,  after  the  payment  of  my  just  debts,  all 
my  propert}'-,  real,  personal  and  perishable,  to  be  hers  in  fee  simple,  so 
that  she  can  have  the  right  to  give  it  to  our  six  children  as  she  may  think 
best,"  it  was  held  under  the  terras  of  the  will,  the  testator's  widow  had 
the  power  to  sell,  at  her  discretion,  any  one  part  of  the  property  for  the 
payment  of  the  debts  of  the  testator,  so  as  to  release  another  part  from 
such  debts ;  and  Battle,  J.,  was  strongly  inclined  to  the  opinion  that 
she  took  an  absolute  interest  in  all  the  property.     Ahton  v.  Lea,  27. 

PLEADING. 

Where  certain  matters  have  been  set  forth  in  the  answer^  by  the  way  of 
plea,  and  there  has  been  replication  to  the  answer,  it  is  too  late  to  ex- 
cept to  the  answer  for  insofficiency.      Worth  v.  Gray,  380. 

Vide  Alteunative  relief  ;  Decree,  <fcc.,  Multifariousness,  Presuaii'tion 

OF  ABANBONXtENT,    3. 

PRACTICE. 

1.  Tlie  orders  and  decrees  of  a  court  of  equity,  are  not  nccossarily  al^soIut4_% 
but  may  be  moulded  and  shaped  to  meet  the  exigence  of  each  particular 
ca:>e.      Worth  v.  Gray,  4. 

2.  Where  a  bill  was  demurred  to,  which  seemed  to  be  dehcient  in  equity,  yi-;, 
as  there  were  facts  and  circumstances  incident  to  the  matter  disclosed 
which  would  have  an  important  bearing  on  the  case,  some  of  which  wert- 
not  set  out  at  all, 'and' others  but?  vaguely,  and  the  amount  involved  was 
large,  the  Court,  without  costs  and  without  prejudice  to  the  defendant's 
equity,  over-ruled  the  demurrer  ui  order  that  the  plaintiflf's  bill  might  be 
ameniled.     Ibid. 

3.  The  office  of  an  exception  is  to  call  the  attention  of  the  court  to  some  spe- 
cific matter  or  item  in  an  account  in  respect  to  which  error  is  alleged;  if  it 
does  not  answer  this  purpose,  the  Court  will  not  notice  it.  ^roini  v. 
Haynes,  50. 

4.  Whore  the  plaintiff,  in  a  suit,  failed  to  file  a  replication  to  the  answer,  and 


404  mDEX. 

the  parties  proceeded  to  take  proofs  in  the  cause,  this  was  held  a  Waiver 
by  the  defendant  of  a  rephcation,  and  the  Court  allowed  an  amendment 
under  the  17th  section  of  the  33rd  cha.  of  the  Revised  Code.  Fleming  v. 
Murph,  59. 

5.  Where  an  objection,  for  the  want  of  parties,  was  taken  ore  tenus,  for  the 
first  time,  on  the  argument  of  the  demurrer  in  this  Court,  which  was  deem- 
ed valid,  the  Court  refused,  nevertheless,  to  dismiss  the  bill,  but  remanded  it 
without  costs  to  the  Court  below,  that  it  might  be  amended  as  to  parties. 
Rountree  v.  McKay,  87. 

6.  Where  the  defendant  has  a  distinct  equity,  he  must  set  it  up  by  a  cross- 
bill or  by  an  original  bill ;  but  he  cannot  have  the  benefit  of  it  by  an  an- 
swer.     Weisman  v.  Smith,  124. 

7.  Although  a  plaintiff  may  fail  as  to  the  principal  equity  he  seeks  to  estab- 
lish, he  may  fall  back  on  a  secondary  equity,  provided  it  is  not  inconsistent 
with  the  principal  equity,  and  the  allegations,  in  the  bill,  are  sufficient  to 
raise  it.      Whitfield  v.  tates,  137. 

8.  A  motion  to  dissolve  an  injunction  may  be  continued  for  any  cause  the 
Court  ^ay  deem  suflicient,  even  without  a  written  affidavit.  Dillin  v. 
Se^s&ms,  256. 

9.  After  a  cause  is  in  this  Court  and  the  party  is  ready  to  have  it  heard,  a 
>  motion  to  dismiss,  for  want  of  a  prosecution  bond,  will  not  be  entertained. 

The  Attorney  Oeneral  v.  Allen^  144. 
Vide  Contempt  of  Court  ;  Recusant  Bidder  ;  Sale  for  partition,  2 ; 
Special  interrogatories. 

PRESUMPTION  OF  ABANDONMENT. 

1.  Where  a  husband  having  a  right  to  receive  satisfaction  for,  or  release  the 
equity  of  his  wife,  permitted  a  long  time  to  elapse  without  bringing  suit, 
during  which  time  his  adversary  was  in  the  open  use  of  the  property, 
claiming  it  as  his  own,  it  was  held  that  a  presumption  of  abandonment,  re- 
lease or  satisfaction  arose  against  the  equity,  which  would  be  fatal,  unless 
the  delay  was  accounted  for.      Worth  v.  Oray,  5. 

2.  Whether  ignorance  of  the  claimant's  right  is  sufficient  to  repel  the  pre- 
sumption arising  from  the  lapse  of  time.    Quere  ?     Ibid. 

3.  Whether  where  a  bill  by  way  of  anticipation  sets  forth  facts  to  repel  the 
presumption  of  satisfaction,  release  or  abandonment,  which  avers  that  in 
fact  there  was  none,  and  the  defendant  pleads  the  statute  of  presumptions, 
it  is  necessary  to  support  such  plea  by  an  answer  to  the  plaintiff's  allega- 
tions.  Quere  ?     Ibid. 

Vide  Payment — repelling  a  presumption. 

PRE-EMPTION. 

1.  Whether  a  court  of  equity  would  interfere  to  compel  a  specific  perform- 
ance of  a  contract  between  two  joint  owners  of  land  that  neither  should 
sell  without  first  giving  the  other  the  refusal  of  it.  Quere  ?  Weisman  v. 
Smith,  124. 

2.  A  sale  of  a  part  of  the  interest  of  one,  by  the  consent  of  both  of  two  joint 


INDEX.  405 

owners  of  land,  as  to  which  there  was  a  right  of  pre-emption,  without  any 
provision  as  to  its  future  exercise,  justifies  the  inference  that  such  right  was 
intended  to  be  abandoned.     Ibid. 

Z.  On  the  death  of  one  of  two  joint  owners  of  land,  between  whom  the  right 
of  pre-emption  existed,  it  was  held  that  such  right  cannot  be  enforced  spe- 
cifically against  the  devisees  of  the  deceased  owner.     Ibid. 

PROCEEDS  OF  A  FUND  BEQUEATHED. 
Vide  Ademption  of  a  legacy,  1. 

PROCESS— WANT  OF  SERVICE  OP. 
Vide  Jurisdiction,  3. 

PROSECUTION  BOND. 
Vide  Practice,  9. 

PURCHASER  WITHOUT  NOTICE. 
Vide  Mistake  in  description. 

REGISTRATION. 
A  deed  of  settlement,  intrust  for  a  wife  and  children,  proved  and  register- 
ed three  years  after  the  date  of  its  execution,   was  held  to  be  valid  as 
against  creditors,  whose  debts  were  contracted  after  such  registration. — 
Johyislon  v.  Malcom,  120. 

REFERENCE  OP  A  SUIT  PRIVATELY. 

Where  a  cause  was  referred  to  arbitrators,  no  pleas  having  been  entered,  it 
was  held  that  the  reference  was  nothing  more  than  a  parol  reference,  and 
that  the  presiding  Judge  had  no  power  to  have  it  stricken  out  Myers 
v.  Daniels,  1. 

REMEDY— FAILURE  OF  AT  LAW. 
Vide  Jurisdiction,  1. 

REMOVAL  OF  PROPERTY  TO  ANOTHER  STATE. 
Vide  Guardian  and  Ward. 

REPLEVIN. 
Vide  Jurisdiction,  1. 

REPLICATION— WAIVER  OF. 
Vide  Practice,  4. 

RESIDUARY  CLAUSE. 
Vide  Fund  for  payment  of  debts. 

RESTRAINT  OF  SHERIFF  FROM  PAYING  OVER  TAX  MONEY. 
Where  a  sheriff  left  his  county  for  something  over  a  month,  on  necessary 
business,  with  an  iutcntion  of  returning  by  a  given  time,  it  not  appearing 
that  he  was  insolvent,  it  was  held  that  the  fact  of  a  deputy's  having  ap- 


406  INDEX. 

plied  a  portion  of  the  taxes  of  a  given  year  to  a  judgment  against  him 
(the  sherifi")  for  the  taxes  of  a  preceding  year,  without  being  instructed 
so  to  do,  by  the  sheriff,  was  not  a  suflficient  ground  for  the  sureties  of 
that  year  to  have  an  injunction  to  restrain  the  sheriff  from  paying 
the  taxes  of  that  year,  oiheriuise  than  as  the  law  directs.  MitcheU  v. 
Ward,  66. 

RECUSANT  BIDDER. 

Upon  the  refusal  of  a  bidder  at  a  sale  of  land  by  the  master,  under  a  de- 
cree of  Court,  to  comply  with  his  bid,  it  is  not  proper,  in  the  first  in- 
stance, to  order  a  resale  of  the  land,  and  that  the  delinquent  bidder  pay 
the  difference  between  the  former  and  the  latter  sales.  The  proper 
course  is  for  the  master  to  report  the  facts  to  the  Court,  and  for  the  bid- 
der to  be  put  under  a  rule  to  show  cause  why  he  shall  not  comply,  with  hia 
contract.  In  the  irMiter  of  Yates,  212,  and  Harding  \ .  Yarhrough,  215. 
Vide  Sale  for  partition.  2. 

SALE  BY  COURT  OP  EQUITY. 
Vide  Recusant  Bidder. 

SALE  FOR  PARTITION. 

1.  Where  it  appeared  that  the  title  to  land,  sought  to  be  sold  for  partition, 
was  subject  to  be  divested  out  of  the  petitioners,  by  the  terras  of  an  execu- 
tory devise,  which  extended  to  it,,  it  was  lield  that  the  Court  could  not  or- 
der a  sale  of  the  premises.     McKay  v.  McNeill,  258. 

2.  Where  a  Court  of  Equity  is  resorted  to,  for  the  sale  of  land,  after  the  sale 
is  ordered  to  be  confirmed  (by  which  the  bid  hecovaGS  accepted,)  if  the  mas- 
ter informs  the  Court  that  the  bidder  refuses  to  comply  with  the  terms  of 
the  sale,  no  order  prejudicing  the  rights  of  the  bidder  can  be  made,  until 
he  is  made  a  party  to  the  proceedings,  by  the  service  of  a  rule  upon  him  to 
show  cause.     In  the  matter  of  Yates,  306. 

SECONDARY  EQUITY. 

Where  a  bill  is  filed  to  have  land  sold  for  partition,  but  no  actual  partition 
is  asked  in  the  alternative,  and  no  general  relief  prayed  for,  the  Court  will 
not  order  such  actual  partition,  though  the  parties  might  seem  to  be  en- 
titled to  it,  if  the  bill  had  been  framed  with  such  an  aspect.  McKay  v. 
McNeill,  258. 
Vide  Practice,  7. 

SEQUESTRATION. 

Where  the  owner  of  a  life  interest  in  slaves,  a  demoralized  and  needy  man, 
who  had  made  a  sale  of  all  his  property,  enquired  of  a  person  whether 
he  could  be  subjected,  criminally,  if  he  removed  the  slaves  out  of  the 
State,  and  intimated  to  another,  after  a  suit  was  brought,  that  if  he  could 
get  the  slaves  in  his  possession,  the  remainderman  should  never  receive 
any  benefit  from  them,  it  was  held  a  proper  case  for  a  writ  of  sequestra- 
tion.    McNeill  V,  Bradley,  41. 


INDEX.  40T 

SETTLEMENT. 

Vide  Injunction,  G;  Tax  on  collaterals,  1. 

SETTLEMENT— HOW  FAR  CONCLUSIVE. 

Where  it  appeared  that  during  a  copartnorsliip  of  eight  years  duration, 
there  had  been  occasional  calculations  of  interest  and  summing  up  of 
results  and  a  division  of  profits,  but  uo  surrender  of  vouchers  or  cancella- 
tion of  books,  nor  release,  nor  receipt  in  full,  it  was  held  that  the  trans- 
actions were  not  of  sueh  a  gonc'lusive  nature  as  to  bar  an  account.  Lynch 
V.  Bitting,  238. 

SHERIFF'S  POWER  UNDER  A  FIERI  FACIAS 

A  sherifif  has  a  right  to  sell  any  property  of  the  debtor,  that  is  subject  to 
the  lien  of  his  execution,  and  the  fact  that  one  has  bought  part  of  such 
property  at  private  sale,  hona  fide,  and  paid  the  full  value,  and  that 
enough  of  other  property  remained  to  satisfy  the  execution,  and  that  the 
sheriff  and  purchaser  had  knowledge  of  this  purchase,  but  were  benefit- 
ted in  the  sale  of  this  particular  property,  and  made  it  from  such  motive, 
could  raise  no  equity  against  the  sherifl'  or  purchaser.  Bevis  v.  Landis 
312. 

SPECIFIC  CHARGE  ON  PROPERTY. 

1.  Where  a  testator  directed  a  pecuniary  legacy  of  $1500  to  be  paid  to  his 
wife  by  his  executors  "  out  of  my  estate,"  for  a  certain  purpose,  and  by  a 
codicil  reduced  the  amount  to  $750,  "  to  be  paid  by  my  executors,"  it  was 
held  that  the  terms  of  the  codicil  did  not  annul  the  force  of  the  words  "  out 
of  my  estate,"  contained  in  the  will.     Biddle  v.   Carraway,  95. 

2.  Where  a  testator,  after  bequeathing  certain  property  for  the  payment  of 
his  debts,  gave  the  residue  of  his  property  in  specific  devises  and  bequests, 
and  then  bequeathed  general  pecuniary  legacies  with  the  direction  "  to  be 
paid  by  my  executors  out  of  my  estate,"  and  the  fund  provided  for  the  pay- 
ment of  debts,  proved  insufficient  for  the  purpose,  it  was  hdd,  (Pearsok, 
C.  J.,  dissentiente,)  that  the  pecuniary  legacies  were  a  charge  upon  the 
specific  ones,  an^  the  latter  must  be  exhausted  before  the  former  could  be 
touched.  But  whether  they  were  a  charge  on  the  land  specifically,  devised. 
Quere  ?     Ihid. 

3.  Personal  property,  which  a  testator  has  given  away  in  his  life-time,  and 
which  does  not  need  the  aid  of  his  will  to  pass  the' title  to  it,  does  not 
abate  for  the  payment  of  debts,  where  there  is  a  deficiency  of'  assets,  al- 
though the  testator  confirms  the  gift  in  his  wilt.     Ibid. 

c^l'ECIFIC  PERFORMANCE. 

1.  Where  a  paper-writing  was  signed  and  sealed  by  the  owner  of  land,  with 
blanks  as  to  the  name  of  the  bargainee  and  le(t  with  an  agent,  who  was 
authorised,  by  parol,  to  fill  up  the  blanks  with  the  name  of  the  purchaser 
and  the  price,  it  was  held  that,  though  such  an  instrument  could  not  ope- 
rate as  a  deed,  yet,  it  was  a  contiaci  for  the  sale  of  land,  signed,  for  ih^ 


408  INDEX. 

person  to  be  charged  therewith,  by  his  lawfully  authorised  agent,  aud  could 
be  specifically  enforced.     Blacknall  v.  Parish,  70 

2.  Where  a  dispute  existed  between  the  owners  of  contiguous  lands  as  tO' 
their  dividing  Hnes,  and  it  was  agreed,  in  wiiting,  to  submit  the  matter  to 
arbitration,  and  to  stand  to  and  abide  hy  such  lines  as  should  be  made  and'' 
laid  doivn  hy  the  referees,  and  the  arbitrators  made  an  award  designating 
dividing  lines  between  the  parties,  which  the  recusant  party  failed  to  show 
were  erroneous,  it  was  held  a  proper  ease  for  the  Court  to  decree  a  specific 
performance.     Thompson  v.  Deans,  22. 

3.  The  remedy  of  the  heirs-at-law,  in  a  case  where  the  obligee  had  not  paid 
the  purchase-money  oa  a  bond  to  make  title,  would  be  to  file  a  bill  against 
such  obligee  to  compel  a  specific  performance.      Wliite  v.  Hooper,  162. 

4.  Where  the  answer  to  a  bill  for  a  specific  performance  of  a  parol  contract 
to  convey  land,  and  in  the  alternative  for  compensation  for  improvements, 
denies  the  terms  of  the  contract  as  set  out  in  the  bill,  and  alleges  a  differ- 
ent one,  which  was  not  performed  on  account  of  the  improper  conduct  of 
the  plaintiff,  and  the  defendant  also  insists  on  the  statute  of  frauds,  it  was 
held  that  the  plaintiff  was  not  entitled  to  compensation  for  value  added  to 
land  by  such  improvements.     Sain  v.  Dulin,  195. 

5.  The  maxim,  that  Equity  will  not  enforce  the  specific  performance  of  an 
agreement,  upon  which  an  action  will  not  He,  at  Law,  for  damages,  never 
meant  more  than  that  the  contract  must  be  such  as  the  law  would  have 
recognised,  if  sued  on  in  proper  time  and  under  proper  circumstances. — 
Willie  V.  Butcher,  231. 

6.  One  who  has  executed  a  bond  to  make  title  to  land,  has  no  right  to  insist,  in 
a  suit  for  a  specific  performance,  that  the  defendant  had  abandoned  his 
right  to  relief,  while  he  still  holds  the  bonds  given  for  the  purchase-money, 
and  has  never  made  an  offer  to  surrender  them  to  his  vendee.     Ibid. 

SPECIAL  INTERROGATORIES. 

Where  a  plaintiff'  in  his  bill  makes  direct  charges,  and  calls  upon  the  defend- 
ant by  special  interrogatories  to. make  discoveries  as  to  those  charges,  the 
answer,  directly  responsive  to  such  interrogatories,  becomes  evidence  for 
the  defendant,  as  well  as  against  him,  notwithstanding  that  a  replication 
to  the  answer  had  been  put  in.     Hughes  v.  Blackwell,  73. 

STATUTE  OP  LIMITATIONS. 

1.  After  the  death  of  one  of  the  members  of  a  copartnership,  the  statute  of 
limitations  begins  to  run  in  favor  of  his  personal  representative  against  a 
claim  to  have  an  account  of  profits  received  by  him.  Weisman  v.  Smith, 
124. 

2.  Where  slaves,  limited  in  remainder  on  a  contingency,  were  sold  under  an 
execution  against  one  claiming  a  present,  absolute  interest,  it  was  held  that 
the  purchaser  under  such  execution,  who  took  possession  and  held  them 
for  inore  than  three  years,  got  title  by  the  statute  of  limitations.  Hei'ndon 
V.  Pratt,  327. 


INDEX.  409 

3.  Where  the  statute  of  limitations  is  a  bar  to  a  trustee,  it  is  also  a  bar  to  the 
cestui  qui  trust,  for  whom  he  holds  the  title.     Ihid. 
Vide  Trust  fund  in  hands  of  husband. 

STOCK  IN  A  RAIL  ROAD  CO. 

Stock  in  a  rail-road  company  is  embraced  in  the  term,  property,   directed 
by  the  will  to  be  sold.    Adams  v.  Jones,  222. 

TAX  ON  COLLATERALS. 

1.  The  8th  section  of  the  99th  chapter  of  the  Revised  Code,  which  directs  the 
tax  on  legacies  to  strangers  in  blood,  unposed  by  the  preceding  section  to 
be  retained  by  the  executor  or  administrator  "  upon  his  settlement  of  the 
estate,"  and  directs  ^the  tax  to  be  paid  mto  the  clerk's  office,  has  reference 
to  his  settlement  with  the  individual  to  whom  the  legacy  is  bequeathed, 
and  not  to  the  final  settlement  of  the  estate,  and  the  tax  must  be  paid  into 
the  office  on  the  settlement  with  the  legatee.  Attorney  General  v.  A2l€7i, 
144. 

2.  A  legacy  in  remainder  to  collateral  kindred,  is  liable  to  the  tax  imposed  by 
the  act  of  1846,  chap.  72,  and  the  proper  mode  of  suing  for  such  tax  is  by 
a  bill  in*  equity,  in  the  nature  of  an  information,  in  the  name  of  the  Attor- 
ney General.     Attorney  Gkneral  v.  Pierce,  240. 

TRUSTEES. 
Vide  Creditors  Bill,  2. 

TRUST  FUND— FOLLOWING  A. 

1,  Where  the  agent  of  a  trustee  received  money,  arising  from  the  sale  of  trust 
property,  made  by  collusion  with  him,  it  was  held  not  to  be  a  defense  to  a 
bill  against  such  agent  to  follow  the  funds  in  his  hands,  that  he  bad  paid 
the  money  over  on  liabilities  which  he  had  incurred  for  the  trustee.  Ben- 
nett V  Merritt,  263. 

2.  Where  trust  property  is  wrongfully  sold  by  a  trustee,  by  collusion  with 
another,  who  did  not,  however,  receive  any  part  of  the  price  for  which  the 
property  sold,  it  was  held  that  the  principle  of  following  a  fund  m  its  con- 
verted state,  does  not  apply.     Ihid. 

Vide  Trust  fund  in  tue  hands  of  a  husband. 

TRUST  FUND  IN  THE  HANDS  OF  A  HUSBAND. 

Where  a  bill  set  forth  that  certain  slaves  were  sold  at  auction  by  an  admin- 
istratrix, and  a  bill  of  sale  made  to  B,  the  purchaser,  but  it  was  agreed 
that'he  should  hold  the  property,  in  trust,  to  indemnify  himseU  against 
certain  debts,  in  which  he  was  surety  for  the  intestate,  and  he  paid  no 
money ;  that  the  debts  remained  unpaid  for  nine  years,  and  that  in  the 
meantime  B  married  the  administratrix,  and  took  with  her  the  slaves  in 
question,  it  was  held  that  these  allegations  were  sufficient  to  make  out  a 
case  against  B  as  succeeding  to  the  trust  his  wife  was  under  to  distri- 
bute, and  having  the  legal  estate  by  the  bill  of  sale,  the  property  could 


410  INDEX. 

be  followed  in  his  hands  and  held  fariher,  that  the  statute  of  hmitationa 
did  not  run  against  the  distributees.     McLaurin  v.  Fairly,  375. 

TRUSTEES  PURCHASING  TRUST  PROPERTY. 

Where  the  trustee  of  an  insolvent  debtor,  under  a  deed  of  trust  which  left 
out  certain  creditors,  bought  property  at  his  own  trust  sale,  at  less  than 
its  value,  but  without  an}*-  actual  fraud,  in  a  suit  by  the  unsecured  credit- 
ors to  compel  a  re-sale  of  the  property  for  their  benefit,  it  was  held  that 
such  trustee  was  entitled  to  have  bona  fide  debts  due  him  from  the  trus- 
tor satisfied  out  of  the  increased  price  obtained  by  a  re-sale  of  the  pro- 
perty before  the  unsecured  creditors  could  come  in.     Elliott  v.  Pool,  42. 

TRUST— PAROL.  ,s» 

Vide  Deed  declared  a  security,  2. 

TENANT  FOR  LIFE  AND  REMAINDERMAN  HOW  ENTITLED  TO 
DAMAGES.  '■ 
Damages  assessed  against  a  railroad  company,  on  the  condemnation  of  land 
to  the  use  of  the  company,  belong  to  the  tenant  for  hfe  and  remainder- 
man, in  proportion  to  the  period  for  which  each  sulTers  the  incumbrance. 
Joyner  v.  Conyers,  79. 

WARRANTY— SUIT  ON. 
Vide  Injunction,  10. 

"  WHEN"  AND  "  IF"— HOW  INTERPRETED. 
Vide  Contingent  Remainder.  3. 

WIDOW  RESIDING  IN  ANOTHER  STATE. 

1.  Where  one,  residing  in  another  State,  made  a  will,  which  was  not  satisfac- 

tory to  his  widow,  who  duly  entered  her  dissent  on  its  being  offered  for 
probate  in  that  State,  and  also  entered  her  dissent,  when  it  was  ofl'ered 
for  probate  in  this  Stale",  it  was  held  'that  she  is  entitled  to  dowei'  and  a 
distributive  share  of  property  lying  in  this  State.     Jones  \.  G^eroc/c,  190. 

2.  The  widow  of  one  domiciied  m  another  State,   who  died  intestate,  seized 

and  possessed  of  lands  in  lliis  Slate,  is  entitled  to  her  dower  in  such 
lands.     Ihid. 

WIFE'S  INTEREST  IN  A  DISTRIBUTIVE  SHARE. 

Where  a  husband  and  wife  brought  suit  in  a  court  of  equity  for  the  distri- 
bution of  a  lund  limited  to  thern  and  others  by  deed,  as  joint  owners, 
and  after  an  interlocutoiy  decree  for  an  account,  but  before  the  ac- 
count was  taken,  the  husband  died,  it  was  held  that  the  wife,  surviving, 
was  entitled  to  the  fund.     Taiham  v.   Wilson,  250. 

WILL— CONSTRUCTION  OF 

1.   Where  a  testator  bequeathed  as  follows:    "I  lend  to  my  wife,  during  her 
life,  all  my  negroes  (three  in  number)  for  the  purpose  of  raisiug  and  ed- 


INDEX.  .  411 

ucating  my  two  sous,"  which  was  but  a  leasonable  share  of  her  hus- 
band's  estate,  and  gave  in  the  same  will,  in  appropriate  terms,  to  his  wife, 
as  guardian  to  his  two  sons,  the  remainder  of  his  estate,  it  was  held  that 
the  former  clause  conferred  upon  her,  for  life,  a  beneficial  interest  in  said 
property,  with  a  recommendation  in  behalf  of  the  two  sons.  Mason  v. 
Sadler,  148. 

2.  Where  a  testator  in  his  will,  gave  a  slave  to  one  of  his  sons,  and  (hen  pro- 

vided that  should  ho  sell  such  slave,  the  proceeds  sliould  go  into  a  com- 
mon fund,  and  afterwards,  by  a  codicil  made  a  contingent  limitation  of 
the  same  slave  to  a  dan^diter  in  the  event  of  the  former  legatee's  dying 
without  leaving  children,  and  further  provided  that  if  any  of  the  slaves 
beqeathed  to  the  daughter,  should  be  sold  by  him,  their  value  should  be 
made  good  to  Iier  out  of  his  estate,  it  was  held  that  the 'said  slave  havinf^ 
been  sold  by  the  testator,  the  daughter  had  no  claim  lor  its  proceeds  out 
of  the  estate.     Tillman  v.  Tillman,  20G. 

3.  Were  a  testator  had  derived  certain  slaves  from  his  maternal  grandfather, 

who  had  lived  in  the  county  of  Martin,  and  it  appearing  to  be  a  leading 
purpose  wiih  him  to  restore  such  slaves  to  their  original  place  of  resi- 
dence, and  to  their  fixmily  connexions,  he  bequeathed  to  one  in  Martin 
as  follows :  "  all  my  negroes  on  ray  Roanoke  plantation,  (which  laid  in 
the  county  of  Martin,)  alscf,'  all  my  negroes  on  my  Edgecombe  farms, 
which  I  got  from  Martin  county,  whether  I  inherited  or  purchased  them," 
it  was  held  that  slaves  bought  by  the  testator  in  Martin  or  elsewhere, 
and  removed  from  that  county  -to  Edgecombe,  and  the  children  born  in 
Edgecombe  of  women  removed  from  Martin,  and  one  born  of  a  woman 
on  the  Roanoke  plantation,  but  which  was  casually  residing  elsewhere, 
all  passed  under  said  bequest.     Norfleet  v.  Slade,  217. 

4.  Where  there  were  two  persons  of  the  same  name,  mentioned  in  a  will,  the 

one  a  grand-daughter,  to  whom  a  small  legacy  was  given,  and  the  other 
a  daughter,  to  whom  a  larger  portion  is  given  in  a  clause  with  two  oth- 
ers, daughters,  it  was  held  that  the  daughter  was  meant  in  such  bequest. 
Ballantyne  v.  Turner,  22-i. 

5.  The  Avords,  "wheat  and  corn  on  hand,"  in  a  will,  were  held  to  mean  that, 

only,  which  was  in  the  granaries  of  the  testator  at  the  time  of  his  death, 
and  not  to  embrace  the  uugaihercd  or  standing  crop.  Adams  v.  Jones 
221. 

6.  Where  a  testator  gave  directions  in  his  will,  that  his  wife  should  "  put  out 

his  money  and  take  security  for  it,"  it  was  held  that  the  ezecutor  was 
not  bound  or  authorised  to  interfere  with  the  widow  in  the  investment 
and  management  of  the  fund.     Ihid. 

7.  A  wish  expressed  at  the  conclusion  of  a  will,  that  if  the  testator  had  not 

provided  his  wife  with  a  plentiful  support,  she  was  to  have  enough  of 
the  interest  of  his  money  to  make  her  such  plentiful  support,  was  held 
too  vague  and  indefinite  to  impose  any  duty  on  the  executor.  Ballan- 
tyne V.  Turner,  225. 

8.  However  deeply  impressed  the  Court  may  be  as  to  a  testator's  particular 


412  INDEX. 

intention,  if  he  has  been  grossly  negligent  in  setting  forth  his  purpose, 
and  to  declare  such  to  be  his  intention,  would  require  the  Court  to  ig- 
nore the  principles  which  have  been  adopted  to  give  eflfect  to  the  inten- 
tions of  testator's,  such  declaration  will  not  be  made.  Gillis  v.  Harris, 
267. 

9.  Grand-children  and  gi-eai- grand-cliitdren  cannot  be  included  in  the  divi- 

sion of  a  residue  directed  to  be  made  among  children.  Mordecai  v.  Boy- 
Ian,  365. 

10.  Where  a  bequest  was  made,  to  the  children  of  a  brother  and  sister  of  the 
testator,  to  which  is  added,  "that  is,  on  the  supposition,  that  my  brother 
is  dead  ;  but  if  he  is  alive  at  the  time  of  ray  death,  then,  he  is  to  receive 
one-haJf  of  my  estate,"  it  was  held,  that  no  question  as  to  whether  the 
estate  was  to  be  divided,  according  to  heads  or  stocks  oould  arise,  for  that 
the  brother  took  one-half  of  the  estate,  and  his  children  uothing.  Cham- 
bers V.  Reid,  304. 

11.  Whether  the  word,  "  wish,"  in  a  will,  was  intended  to  create  a  trust,  dis- 

cussed. The  case  was  decided  upon  the  peculiar  phraseology  of  the  will. 
Cook  V.  Ellington,  371. 

12.  A  testator,  in  contemplation  of  a  certain  contingency,  provided  that  there- 

upon an  estate,  consisting  of  realty  and  personalty,  should  be  divided 
into  four  parts,  and  distributed  as  follows :  One  each  to  a  brother  and  a 
sister,  and  their  heirs :"  "  One  part  to  my  other  lawful  heirs,  and  the 
fourth  part  to  foreign  missions,  to  be  paid  over  to  the  treasurer  of  that 
board,  to  be  appropriated  to  that  purpose."  By  another  clause,  he  pro- 
vided that — "  If  there  should  be  any  property,  either  real  or  personal, 
not  given  away  heretofore,  it  is  to  be  equally  divided  between  all  my 
lawful  heirs."  The  brother  and  sister  survived  the  testator,  but  died  be- 
fore the  happening  of  the  event  contemplated.  Upon  the  happening  of 
that  event : 

13.  Held  (1)  that  the  two  shares,  first  mentioned,   descended — the  realty  to 

the  heirs,  and  the  personalty  to  the  personal  representatives  of  the  broth- 
er and  sister  respectively.     Hackney  v.  Griffin,  380. 

14.  (2)  That  the  third  share  belonged  to  such  as  were  heirs  of  the  testator  as 

to  really,  excluding  the  heirs  of  the  brother  and  sister  first  mentioned. — 
Ibid. 
16.  (3)  That  the  share  devised  to  foreign  missions,  having  lapsed  on  account 
of  the  ambiguity  of  the  clause  which  contained  it,  fell  into  the  residue, 
and  descended  upon  all  those  who  were  heirs  of  the  testator  as  to  realty. 
Ibid. 
Vide  Bonds,  notes,  &c.,  whether  to  be  sold  ;  Partnership,  2 ;   Power 

TO  DISTRIBUTE  :    StOCK  IN  A  RaILROAD. 


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